Equipo Nizkor - Nepal: Suman Adhikari et. al vs. the Office of Prime Minister and Council of Ministers.

Supreme Court
Special Bench
Honorable Justice Kalyan Shrestha
Honorable Justice Baidyanath Upadhyaya
Honorable Justice Sushila Karki

ORDER
069-WS-0057

Subject: Mandamus including Certiorari

Petitioners:

Suman Adhikari, aged 37, a resident of Chandreshwor VDC- 6 of Lamjung District

Gyanendra Raj Aaran, aged 37, a resident of Puranagaun VDC- 5 of Ramechhap District

Prakash Chandra Shrestha, aged 29, a resident of Tilpung VDC- 9 of Ramechhap District

Manjima Dhakal, aged 24, a resident of Harmi VDC- 8 of Gorkha District

Savitri Shrestha, aged 50, permanent resident of Saghutar VDC- 5 of Ramechhap District, currently residing at Kathmandu Municipality- 2 of Kathmandu District

Purni Maya Tamang, aged 52, a resident of Chhatrebas VDC- 5 of Kavrepalanchowk District

Ruku Acharya,aged 56, a resident of Kewalpur VDC- 8 of Dhading District

Devi Sunuwar Kharel, aged 49, a resident of PokhariChauki VDC- 4 of Kavre District

Anjan Kumar Shrestha, aged 46, a resident of Pokali VDC- 2 of Okhaldhunga District

Laxmi Devi Shrestha, aged 44, a resident of Tarkerabari VDC- 6 of Okhaldhunga District

Navraj Pokharel, aged 34, a resident of Choprak VDC- 8 of Gorkha District

Binod Sapkota, aged 25, a resident of Aarupokhari VDC- 6 of Gorkha District

ShivaHari Hamal, aged 34, a resident of Choprak VDC- 7 of Gorkha District

Dhurva Kumar Karki, aged 63, a resident of Chanakhu VDC- 2 of Ramechhap District

Tej Bahadur Adhikari, aged 60, a resident of Fulasi VDC- 2of Ramechhap District

Ramu Nepali, aged 41, a resident of Dhawa VDC- 6 of Gorkha District

Medhnath Bhattarai, aged 76, a resident of Taple VDC- 8 of Gorkha District

Bijay Shrestha, aged 19, a resident of Kathmandu Metropolitan - 2of Kathmandu District

MainavAdhikari, aged 44, a resident of LahaVDC- 4 of Jajarkot District

Rabindra Kishore Khanal, aged 33, a resident of Taklung VDC- 1of Gorkha District

Bhojraj Timilsena, aged 40, a resident of Kuika VDC- 2of Achham District

Devchnadra Adhikari, aged 61, a resident of Kumari VDC- 3of Nuwakot District

Sandip Gurung, aged 34, a resident of Sunwal municipality- 7 of Nawalparasi District

Tara Devi Shrestha, aged 54, a resident of Nepalgunj Municipality- 12of Banke District

Bikram Tharu, aged 20, a resident of Baniyabhar VDC- 4 of Bardiya District

Kalyan Budhathoki, aged 52, a resident of Gelu VDC- 1of Ramechhap District

Sumnima K.C., aged 26, a resident of Nepalgunj Municipality- 12 of Banke District

Shyam Kumar Chaudhary, aged 70, a resident of Shardanagar VDC- 4 of Chitwan District

Shnakar Bahadur Budhathoki, aged 47, a resident of Gelu VDC- 1 of Ramechhap District

Medh Bahadur Khatri, aged 65, a resident of Hiledevi VDC- 7 of Ramechhap District

Narayan Prasad Gautam, aged 69, a resident of TariGaun VDC- 2 of Dang District

Ransingh Pun, aged 57, a resident of Pokhara VDC- 7 of Rukum District

Set Bahadur Bohra, aged 45, a resident of Shova VDC- 3 of Rukum District

Jaima Gharti, aged 43, a resident of Pokhara VDC- 8 of Rukum District

Kamala Bhatta, aged 41, a resident of Fujel VDC- 3 of Gorkha District

Deepak Oli, aged 25, a resident of Khara VDC- 2 of Rukum District

Jagat Bahadur Bista, age 36, a resident of Kotwada VDC- 3 of Kalikot District

Bablu Lama, aged 34, a resident of Baluwapati VDC- 1 of Kavrepalanchowk District

Yash Prasad Bhusal, aged 40, a resident of ShankharPokhari VDC- 9 of Parbat District

Kanchha Putuwar, aged 39, a resident of Banepa Municipality- 1 of Kavrepalanchowk District

Manju Gautam, aged 35, a resident of Madankudari VDC- 5 of Kavrepalanchowk District

Bishesh Upreti, aged 19, a resident of Namdu VDC- 1 of Dolakha District

Ek Kumari Chaulagain, aged 36, a resident of PokhariNagreyGagarchai VDC- 2 of Kavrepalanchok District

Chandra Kala Upreti, aged 44, a resident of Namdu VDC- 1 of Dolakha District

Santoshi Timalsina, a resident of Milchey VDC- 2of Kavrepalanchowk District

Man Kumari Ranjit, a resident of Banepa Municipality- 6 of Kavrepalanchowk District

Bishnu Prasad Kharel, aged 35, a resident of PokhariNarayansthan VDC- 3 of Kavrepalanchowk District

Savitri Acharya, aged 51, a resident of Naubishey VDC- 1 of Dhading District

Lila Devi Tamang, aged 38, a resident of Gobindapur VDC- 1 of Morang District

Madhav Prasad Neupane, age 44, a resident of Nepaley Dada VDC- 7of Bhojpur District

Sirjana Pandey Thapa, aged 33, a resident of Thakre VDC- 2 of Dhading District

Bidur Prasad Siwakoti, aged 20, a resident of Kathmandu Metropolitan - 10 of Kathmandu District

Bheshraj Adhikari, aged 29, a resident of Laxmipur VDC- 8 of Ilam District

Lekhnath Adhikari, aged 43, a resident of Ayodhyapuri VDC- 2 of Chitwan District

Kamal Prasad Subedi, aged 38, a resident of Makaibari VDC- 7 of Dolakha District

Devraj Neupane, a resident of Ayodhyapuri VDC- 6 of Chitwan District

Dambar Bahadur Bhujel, aged 77, a resident of Khimti VDC- 4 of Ramechhap District

Pramila Adhikari, aged 29, a resident of Neejgadh VDC- 3 of Bara District

Uma Paudel, aged 25, a resident of Deurali VDC- 9 of Ramechhap District

Anita Gyawali, aged 33, a resident of Kerunga VDC- 1 of Arghakhanchi District

Tuna Raj Giri, aged 50, a resident of PuranaGaun VDC- 5 of Ramechhap District

Jamuna Roka, aged 40, a resident of Ragani VDC- 4 of Okhaldhunga District

Amrit Bhattarai, aged 23, a resident of Shiva Mandir VDC- 8 of Nawalparasi District

Chiranjiviwas Giri, aged 56, a resident of Sakhuwa Mahendragar VDC- 3 of Dhanusha District

Ritamaya Thapa, aged 28, a resident of Irkhu VDC- 7 of Sindhupalchowk District

Shiva Kumar Dangol, aged 71, a resident of Dhangadhi municipality- 1 of KailaliDistrict

Ram Lakhan Kalwar, aged 47, a resident of Titikhri VDC- 4 of Kapilvastu District

Ram Kumari Shrestha, aged 34, a resident of Bhaktapur Municipality VDC- 17 of Bhaktapur District

Mohan Oli, aged 49, a resident of Khara VDC- 2 of Rukum District

Savitri Sharma, aged 37, a resident of Chinnewas VDC- 3 of Syangjha District

Dipesh Bhattarai, aged 39, a resident of Taple VDC- 8 of Gorkha District

Bishnu Kumari Sapkota, a resident of Aarupokhari VDC- 6 of Gorkha District

Ramu Nepali, aged 41, a resident of Dhawa VDC- 6 of Gorkha District

Medhnath Bhattarai, aged 76, a resident of Taple VDC- 8 of Gorkha District

Krishnaman Ghale, aged 54, a resident of Salme VDC- 7 of Nuwakot District

Rajani Amatya Jonchhe, aged 64, a resident of Lalitpur Sub-Metropolitan - 17 of Lalitpur District

Ganesh Bahadur Malla, aged 43, a resident of Dhangadhi Municipality-4 of Kailali District

Hari Prasad Gautam, aged 81, a resident of Lakhanpur VDC- 2 of Ramechhap District

Mithai Lal Loniya, a resident of Khuruhuriya VDC- 7 of Kapilvastu District

Lalimaya Tamang, aged 53, a resident of Bungtang VDC- 9 of Nuwakot District

Kantamaya Adhikari, aged 46, a resident of katunje VDC- 7 of Okhaldhunga District

Nirmal Kumar Lama, aged 39, a resident of Makadum VDC- 1 of Ramechhap District

Janak Kumari Koirala, a resident of Simjung VDC- 4 of Gorkha District

Fadindra Luitel, aged 31, a resident of Phulbari VDC- 7 of Okhaldhunga District

MuktinathNeupane, aged 46, a resident of AyodhyapuriVDC- 6 of Chitwan District

Yog Maya Tamang, aged 29, a resident of Bungtan VDC- 5 of Nuwakot District

Dick BahadurTamang, aged 67, a resident of Doramba VDC- 4 of Ramechhap District

Surendra Kumar Ghising, aged 42, a resident of Hileydevi VDC- 3 of Ramechhap District

Ramesh Bhatta, aged 27, a resident of PandrungVDC- 8 of Gorkha District

Surendra Kumar Ghising, aged 36, a resident of Jagatipur VDC- 1 of Jajarkot District

Bijay Lama, aged 31, a resident of DorambaVDC- 8 of Ramechhap District

Shrijana Shrestha, aged 39, a resident ofKirtipur Municipality-12 of Kathmandu District

Shree KumariGharti, aged 36, a residentof Uwa VDC- 6

Udiram Chunara, aged 44, a resident of Pampa VDC- 8 of Surkhet District

Sushila Oli, aged 57, a resident of Birendranagar Municipality- 6 of Surkhet District

Bhagwati Puri, aged 66, a resident of Birendranagar Municipality- 1 of Surkhet District

Dharam Bahadur Chaudhary, aged 41, a resident of Shripur VDC- 2 of Kanchanpur District

Narendra Prasad Dagaura Chaudhary, a resident of Pipaladi VDC- 6 of Kanchanpur District

Hira Devi Bhandari, aged 42, a resident of Daiji VDC- 8 of Kanchanpur District

Mina Devi Pharswan, aged 44, a resident of Suda VDC- 7 of Kanchanpur District

Sagar Koirala, aged 23, a resident of Narayan Municipality - 2 of Dailekh District

Pavitra devi Sharma, aged 58, a resident of Belaspur VDC- 3 of Dailekh District

Mina Chaudhary, aged 22, a resident of Ghorahi Municipality - 3 of Dang District

Rami Chaudhary, aged 20, a resident of Ghorahi Municipality - 3 of Dang District

Lahiya Devi Chaudhary, aged 41, a resident of Pahalmanpur VDC- 9 of Kailali District

SherBahadur Hamal, aged 57, a resident of Khailad VDC- 8 of Kailali District

Chandra Devi Bista, aged 35, a resident of DodharaChadani VDC- 4 of Kanchanpur District

Mukunda Sign Bali, aged 34, a resident of Nauwasta VDC- 9

Binita Chaudhary, aged 23, a resident of Titihiriya VDC- 2 of District Banke

Gauri Tharu, aged 53, a resident of Titihiriya VDC- 2 of District Banke

Fularani Tharu, aged 30, a resident of Titihiriya VDC- 1 of District Banke

Sundarkali Tharu, aged 37, a resident of Titihiriya VDC- 5 of District Banke

Aayush Chaudhary, aged 25, a resident of Rajhena VDC- 5 of District Banke

Prem Bahadur Thapa Chhetri, aged 42, a resident of Naubasta VDC- 8 of District Banke

Bhumisara Thapa Chhetrini, aged 66, a permanent resident of Sanoshri VDC-9 of Bardiya district and currently residing at Rajhena VDC- 2 of District Banke

Dhana Kumari Tharu, aged 50, a resident of Samshergunj VDC- 4 of District Banke

Kumali Tharuni, aged 39, a resident of Samshergunj VDC- 1 of District Banke

Indariya Tharuni, aged 42, a resident of Samshergunj VDC- 4 of District Banke

Lakshmaniya Tharuni, aged 43, a resident of Samshergunj VDC- 4 of District Banke

Bikaulal Bhujuwa, aged 59, a resident of Holiya VDC- 7 of District Banke

Usha Chhetri, aged 41, a resident of Bankatuwa VDC- 4 of District Banke

Ram Kumar Yadav, aged 32, a resident of Samshergunj VDC- 2 of District Banke

Pannalal Chamar, aged 28, a resident of Udharapur VDC- 4 of District Banke

Naridevi Chand Thakuri, aged 52, a resident of Kohalpur VDC- 4 of District Banke

Jagadish Yadav, agd 50, a resident of Samshergunj VDC- 7 of District Banke

Tulsi Bista, aged 32, a resident of Puraini VDC- 2 of District Banke

Deusara Kamini, a permanent resident of Jamuni VDC-5 of Bardiya district and currently residing at Kohalpur VDC- 3 of District Banke

Jaitun Khan, aged 73, a resident of Udharapur VDC- 5 of District Banke

Ibrahim Khan, aged 67, a resident of Udharapur VDC- 6 of District Banke

Amrita Devi Pun Magar, aged 35, a resident of Kohalpur VDC- 4 of District Banke

Khimi Wali, aged 62, a permanent resident of Korbang Jhimphe VDC-4 of District Salyan and currently residing at Titihiriya VDC- 6 of District Banke

Kali Damai, aged 41, a permanent resident of Kalyan VDC-3 of District Surkhet and currently residing at Kohalpur VDC- 3 of District Banke

Nanda Kumari Biswakarma, aged 37, a resident of Khaskusma VDC- 9 of District Banke

Dhanno Balmiki, aged39, a permanent resident of Nepalgunj Municipality-3 and currently resident of Kohalpur VDC- 3 of District Banke

Sabitri Godiya, aged 55, a resident of Gangapur VDC- 4 of District Banke

Rajendra Kumar Murau, aged 42, a resident of Gangapur VDC-5 of District Banke

Bhedlal Wali, aged 50, a permanent resident of Syanikhal VDC-4 of District Salyan and currently residing at Khaskusma VDC-,of District Banke

Tanka Bahadur Khatri, aged 37, a resident of Kachanapur VDC-7 of District Banke

Suresh Kumar Baniya, aged 27, a resident of Bageswori VDC-9

Safiulla Nau, aged 36, a resident of Udharpur VDC-8 of District Banke

Samjhana Thapa, aged 33, a resident of Bhanu VDC -2 of District Tanahu

Puja Nepali, aged 36, a resident of Barbhanjyang VDC - 3 of District Tanahu

Radha Thapa Magar, aged 40, a resident of Byas Municipality -9 of District Tanahu

Mankumari Shrestha, aged 43, a resident of Bhirkot VDC - 3 of District Tanahu

Kalpana Nangila, aged 32, a resident of Symagha VDC - 3 of District Tanahu

Bishnu Prasad Bhattarai, aged 53, a resident of Dhorfirdi VDC - 3 of District Tanahu

Madu Adhikari, aged 36, a resident of Bandipur VDC - 2 of District Tanahu.

Manbahadur Biswakarma, aged 64, a permanent resident of Sishuwa VDC-6 of Kaski District and currently residing at Lekhnath Municipality-13 of District Kaski

Radhika Simkhada, aged 50, a resident of Dhawa VDC -4 of District Gorkha

Pradip Acharya, aged 38, a resident of Sardikhola VDC -1 of District Kaski

Surendra Khatri, aged 28, a resident of Babiyachaur VDC -6 of District Myagdi

Min Bahadur Thapa, aged 36, a resident of Palakot VDC - 5 of District Baglung

Narsingh Bahadur Khatri, aged 59, a resident of Babiyachaur VDC -5 of District Myagdi

Durga Prasad Acharya, aged 21, a resident of Pulachaur VDC - 2 of District Myagdi

Deb Bahadur Maharjan, aged 43, a resident of Kirtipur Municipality-15 of District Kathmandu

Krishna Prasad Parajuli, aged 52, a resident of Leknath Municipality -2 of District Kaski

Ananath Baral, aged 61, a resident of Leknath Municipality -2 of District Kaski

Bimal Bahadur Chhetri (K.C), a resident of Rangkhani VDC -7 of District Baglung

Sabitri Khadka, aged 27, a resident of Dhamja VDC - 8 of District Baglung

Chham Kumari Basnet, aged 43, a resident of Narethati VDC -1 of District Baglung

Hastika Pun, aged 42, a resident of Bowang VDC - 8 of District Baglung

Sita Bastakoti, aged 47, a resident of Leknath Municipality -4 of District Kaski

Maya Giri, aged 49, a resident of Kaskikot VDC - 6 of District Kaski

Salikram Paudel, aged 65, a resident of Kaskikot VDC -2 of District Kaski

Kalpana Subedi, aged 28, a resident of Khaula Lakhuri VDC - 2 of District Parbat

Ekmaya Sharma Lamichhane, aged 40, a resident of Chitre VDC -5 of District Parbat

Ghanadevi Pun, aged 36, a resident of Bowang VDC -8 of District Baglung

Devisara Siuthani, aged 48, a resident of Bungadobhan VDC - 2 of District Baglung

Badri Bahadur K.C, aged 55, a resident of Baglung Municipality -5 of District Baglung

Ramkaliya Tharuni, aged 51, a resident of Pashupatinagar VDC - 3 of District Bardiya

Purna Bahadur Chaudhary, aged 66, a resident of Neulapur VDC -6 of District Bardiya

Lakshmi Khadka, aged 45, a resident of Mahmatpur VDC - 7 of District Bardiya

Devisara Khatrini, aged 43, a resident of Baniyabhaar VDC - 1 of District Bardiya

Pushpa Chaudhary, aged 34, a resident of Badaalpur VDC - 9 of District Bardiya

Ramkalin Tharuni, aged 55, a resident of Magaragadi VDC - 1 of District Bardiya

Paniya Tharu, aged 43, a resident of Bagnaha VDC - 8 of District Bardiya

Rabina Chaudhary, aged 31, a resident of Nayagaun VDC -5 of District Bardiya

Hemraj Tharu, aged 60, a resident of Badalpur VDC -5 of District Bardiya

Suinarayan Tharu, aged 55, a resident of Magaragadi VDC -1 of District Bardiya

Ramsharan Tharu, aged 48, a resident of Deudhaakla VDC - 9 of District Bardiya

Baadhi Chaudhary, aged 28, a resident of Rajapur VDC - 1 of District Bardiya

Rajkumari Tharu, aged 38, a resident of Manau VDC - 5 of District Bardiya

Runchi Tharuni, aged 58, a resident of Neulapur VDC - 2 of District Bardiya

Lotankumari Chaudhary, aged 32, a resident of Khairi Chandanpur VDC - 2 of District Bardiya

Premkumari Tharu, aged 33, grand daughter of Kukua Tharu, daughter of Lalitram Tharu and wife of Prem Bahadur Tharu

Mungti Tharu, aged 56, a resident of Sorahawa VDC - 2 of District Bardiya

Lakshmi Swar, aged 36, a resident of Sorhawa VDC - 4 of District Bardiya

Jitendra Kumar Chaudhary, aged 24, a resident of Khairichandanpur VDC-2 of District Bardiya

Gauri Tharuni, aged 41, a resident of Pashupatinagar VDC - 3 of District Bardiya

Ramdulari Tharuni, aged 48, a resident of Mangragadi VDC - 5 of District Bardiya

Dhaniram Tharu, aged 56, a resident of Bagnaha VDC -3 of District Bardiya

Jagat Kumari Basnet, aged 72, a resident of Neulapur VDC - 8 of District Bardiya

Indrani Chaudhary, aged 33, a resident of Neulapur VDC - 8 of District Bardiya

Sabitri Thapa, aged 54, a resident of Baniyabhar VDC - 5 of District Bardiya

Anita Tharuni, aged 32, a resident of Mainapokhar VDC - 2 of District Bardiya

Mandarani Tharu, aged 24, a resident of Motipur VDC - 5 of District Bardiya

Rampiyari Tharuni, aged 33, a resident of Titihiriya VDC - 5 of District Banke

Janaki K.C, a resident of Thakurdwara VDC - 4 of District Bardiya

Hira Tharu, aged 39, a resident of Rajapur VDC - 5 of District Bardiya

Belrani Tharuni, aged 38, a resident of Belwa VDC -3 of District Bardiya

Jumli Tharu, aged 56, a resident of Manau VDC - 7 of District Bardiya

Gautamraj Chaudhary, aged 23, a resident of Patabhar VDC -6 of District Bardiya

Jangali Tharu, aged 59, a resident of Patabhar VDC - 6 of District Bardiya

Bhauna Tharu, aged 44, a resident of Neulapur VDC - 4 of District Bardiya

Sapati Tharuni, aged 54, a resident of Neulapur VDC - 3 of District Bardiya

Bandana Kumari Mandal, aged 24, a resident of Magaragadi VDC -1 of District Bardiya

Sumatrani Tharu, aged 38, a resident of Baniyabhaar VDC - 5 of District Bardiya

Bishnu Prasad Tharu, aged 23, a resident of Magaragaadi VDC -5 of District Bardiya

Phulkumari Tharu, aged 35, a resident of Magaragaadi VDC - 5 of District Bardiya

Ramkumari Tharuni, aged 42, a resident of Magaragaadi VDC - 5 of District Bardiya

Juglal Tharu, aged 53, a resident of Badaalpur VDC - 2 of District Bardiya

Bina Chaudhary, aged 22, a resident of Patabhaar VDC - 6 of District Bardiya

Mankala Kumari Chaudhary, a resident of Manpurtapara VDC-4, of District Bardiya

Mayaram Chaudhary, age 25, a resident of Khairichandanpur VDC - 6 of District Bardiya

Shiba Tharu, aged 35, a resident of Pashupatinagar VDC - 4 of District Bardiya

Janakrani Tharuni, aged 43, a resident of Manpurtapara VDC -8 of District Bardiya

Junakumari Sapkota, aged 44, a resident of Kalika VDC -4 of District Bardiya

Bhagiram Chaudhary, aged 34, a resident of Dhadhawar VDC -8 of District Bardiya

SonitaDevi Mohara, aged 32, a resident of Sitapur VDC - 4 of District Siraha

Dilliram Luintel, aged 26, a resident of Rajghat VDC - 5 of District Morang

Pawitra Khatiwada, aged 22, a resident of Lakhanpur VDC -1 of District Jhapa

Chandrawati Shrestha, aged 42, a resident of Indrapur VDC -6 of District Morang

Tulsi Prasad Aapgain, aged 59, a resident of Rajghat VDC - 8 of District Morang

Bhim Bahadur Rawat Chhetri, aged 61, a resident of Urlabari VDC -4 of District Morang

Samundra Devi Yadav, aged 34, a resident of Serathi aain VDC - 8 of District Siraha

Medani Prasad Timsina, aged 60, a resident of Mahendranagar VDC - 5 of District Sunsari

Rita Giri, aged 46, a resident of Hasopaso VDC -6 of District Sunsari

Kamala Devi Luintel, aged 28, a resident of Rajghat VDC -8 of District Morang

Kalpana Dhakal, aged 30, a resident of Triyuga Municipality - 8 of District Udaypur

Durga Karki, aged 27, a resident of Rauta VDC - 3 of District Udaypur

Dharmashila Devi, aged 46, a resident of Radhapur VDC -7 of District Siraha.

Bhim Bahadur Adhikari, aged 68, a resident of Rajghat VDC - of District Morang

Sumitra Devi Sah, aged 53, a resident of Mirchaiya VDC - 9 of District Siraha

Rupesh Sah, aged 36, a resident of Dumraha VDC -5 of District Sunsari

Versus

Respondents:

Government of Nepal, Office of Prime Minister and Council of Ministers, Singh Durbar, Kathmandu

Government of Nepal, Council of Ministers, Singh Durbar, Kathmandu

Government of Nepal, Ministry of Law, Justice, Constituent Assembly and Parliamentary Affairs, Singh Durbar, Kathmandu

Government of Nepal, Ministry of Peace and Reconstruction, Singh Durbar, Kathmandu

Legislature-Parliament, Singh Durbar, Kathmandu

Legislature-Parliament Secretariat, Singh Durbar, Kathmandu

Speaker, Legislature-Parliament, Singh Durbar, Kathmandu

Office of Attorney General, Ram Shah Path, Kathmandu

The facts in brief and the order issued thereupon in the present writ petition filed under the extraordinary jurisdiction of this Court pursuant to clauses Article 107(1),(2) of the Interim Constitution of Nepal, 2007 are as follows:-

Facts of the Writ Petition:-

We, the petitioners, are the directly affected victims and the family members of the victims of incidents of violations of human rights and humanitarian law during the armed conflict (February 13, 1996 - November 21, 2006). The Constituent Assembly, in its capacity of Legislature Parliament, promulgated the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, in 2071 (2014), which, after receiving assent from R't Hon'ble President, was published in the Nepal Gazette, Additional Issue 2 of May 11, 2014, listed as Act No. 1 of 2071 B.S. The preamble of the Act outlines the reasons behind the establishment of the Investigation of Enforced Disappearance Commission and the Truth and Reconciliation Commission. Those reasons include the investigation of the truth about the persons involved in gross violations of human rights and crimes against humanity during the armed conflict, establishment of the actual facts regarding such incidents and making them public, the creation of an environment of peace and reconciliation in the society by promoting mutual feelings, respect and tolerance, the recommendation of reparations for the victims and prosecution of those involved in serious violations of crimes against human rights. However, numerous provisions of the Act are vague, unclear and do not include all the different classes of victims, and as victims and family members of the victims, we have a direct interest and meaningful relation with the Act. In addition, the subject of establishing long lasting peace itself being a matter of public interest and well being, the petitioners have the required 'locus standi' to file this writ petition.

The Comprehensive Peace Agreement signed on November 21, 2006, signaled the ending of the armed conflict, which had been initiated by the then existing CPN -Maoists on February 13, 1996. With regard to addressing the incidents committed in the context of the armed conflict, Articles 5.2.3 and 5.2.5 have provided for ending impunity, establishment of a Truth and Reconciliation Commission, investigation and establishment of the truth regarding enforced disappearances, along with a commitment to promote transitional justice. This commitment was subsequently endorsed by the Interim Constitution of Nepal, 2007 in Articles 33 (q) and 33 (s) and made a part of the obligation of the State.

As a part of implementation of the aforementioned Comprehensive Peace Agreement and the provisions of the Interim Constitution, the then government presented "the Bill on Investigation of Disappeared Persons, 2066" and "the Bill for Establishment of Truth and Reconciliation Commission 2066" in the Legislature-Parliament. However, with the dissolution of the Constituent Assembly on May 27, 2012, the Legislature-Parliament was also automatically dissolved thereby making all the pending Bills automatically ineffective. Post this, the government presented the draft of Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission 2069 (2013) to the Office of the President, which was certified by the President on March 14, 2013 amid common political agreement.

The Ordinance was challenged through the writ petitions No. 069-WS-0057 by Advocate Madhab Basnet on behalf of Juri Nepal & Others and No. 069-WS-0058 by Suman Adhikari, who is also one of the petitioners in the present writ petition, & Others on behalf of the conflict victims. On 2nd January 2014, the Supreme Court held the problematic provisions of Sections 23, 25 and 29 of the Ordinance as unconstitutional while also nullifying the impact of some other provisions of the Ordinance, and issued an order of Mandamus to the Government of Nepal to modify and amend the Ordinance in line with the standards of international law taking the assistance of an expert committee well versed in this subject. The following orders were made while deciding the writ petition:

"....whereas the Investigation of Disappeared Persons Commission should have been treated as purely related to a criminal act of enforced disappearance, it has not been so in the Ordinance, and whereas it should not have been made a matter of reconciliation, it has been so done and made a part of the Truth and Reconciliation Commission. As this is against law, and as those provisions contained the Ordinance which appeared to be in contravention to the Constitution, law and the principles of judicial precedents as laid down by this Court, an order of Certiorari is hereby issued in the name of the respondents invalidating those provisions and requiring them to be removed from the Ordinance, and holding that the Ordinance should not be implemented or cause to be implemented in its present form."

"As stated above, an order of Mandamus is hereby issued to the Government of Nepal to promulgate, without delay, another Ordinance with necessary legal provisions to establish a separate Investigation Commission, or to make necessary arrangements for the same, for the investigation of enforced disappearances, in line with the Constitution, laws and the decision of this Court in the case of Rajendra Dhakal and other legal precedents laid down by this Court."

"Other provisions of the Ordinance....as the provisions of the Ordinance in the present form are not found to be in line with the principles of constitution and justice, and as it requires to be done as mentioned hereunder, the order of Mandamus is hereby issued to the Government of Nepal to do as mentioned hereunder and issue the Ordinance only after its amendment or reform or to implement it after making any other necessary legal arrangement."

a) "Since the provision of Section 23 of the Ordinance concerning amnesty does not assure non-recommendation for amnesty even in case of the offences referred to in Section 2 (j) and it has made them a matter of amnesty procedures and since this has made the involvement and consent of victim in the amnesty proceedings not mandatory but only a secondary requirement and as this seems to be against the victims' fundamental right to justice including right to life and liberty, right to information, right against torture, and against the recognized principles of justice, this provision has to be reviewed, reformed and amended accordingly."

b) "Since the provisions of Sections 25 and 29 of the Ordinance do not ensure certain, simple and non obstructive prosecution of the perpetrators of serious violation of human rights , rather it has been subjected to the discretion of the executive and made uncertain, thereby obstructing the process of justice, the said provisions need to be made consistent with the Constitution and laws."

c) "Since the statutory limitation of thirty five days has been prescribed to file cases after the recommendation of the Commission or after the Attorney General's decision to file cases on the recommendation of the Ministry, and since the resultant impact on justice and the accountability for that have not been specified in case the case could not not be filed within the statutory limitation, and since such a short period of statutory limitation in serious violation of human rights may lead to impunity, the said provisions are inconsistent with the provisions relating to fundamental rights and justice in the Constitution and contrary to the accepted principles of justice recognized by the Constitution, and, therefore, they need to be reviewed and amended accordingly in tune with the Constitution and justice."

d) "In addition to the aforementioned provisions, an order is hereby issued to reform law and adopt necessary measures to criminalize serious human rights violations; to initiate extensive campaigns to promote the spirit of reconciliation; to provide for reparation to the victims and their families with enough financial, legal and institutional arrangements; and to ensure the autonomy and impartiality of the Truth and Reconciliation Commission by forming such a Commission consisting only of individuals who, during conflict, were not parties to that conflict or were not involved, in any way, either in repression of that conflict or were a part of the administration thus being party to the conflict, or who do not have any negative records of human rights violations, and also in line with the internationally accepted standards; to make and implement victim and witness protection program for them to be able to tell their truth, to be able to effectively defend it, and to protect their individual identity related details; to arrange for, if needed, in-camera hearing or distance hearing by arranging various means including of audio-visual technique."

e) "To amend the Ordinance by taking assistance from an expert team comprising conflict experts, organizations representing victims or victims' interests, human rights law experts, and other stakeholders In order to prescribe in the law itself the fundamental provisions in regard to the norms to be adopted by the Commission on issues including amnesty ."

Article 102(4) provides that the Supreme Court shall have the final authority to interpret this Constitution and the laws in force. Similarly, Article 116 provides that everyone shall abide by the orders and decisions made by the Supreme Court in course of hearing a lawsuit. However, in the present dispute, digressing from the obligation enjoined by the Constitution and willfully ignoring the orders of the Court, all the respondents have presented, passed and assented to the Bill which has virtually replicated those problematic unconstitutional provisions in the Ordinance that were declared void and invalid by the apex Court. As this Act has been passed contrary to the established principles and practices of law making, it has come forward as a defective law. The provisions of Sections 10,11,12,13 (2), 13 (3), 13 (4), 22 (1), 24 (1), 25 (3), 25 (4), 26 (1), 26 (2), 26 (5), 29 (1) and 44 of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014) are contrary to the Interim Constitution of Nepal, 2007, international human rights law and humanitarian law and even the legal principles established by the Supreme Court. In complete disregard of the order of Mandamus passed by the Supreme Court on 2014/01/02 to amend the Ordinance to ensure that amnesty was not provided with regard to serious offences, Section 26 (2) of the Act provides that "...." , the Commission may recommend amnesty in cases of even rape and other crimes of serious nature such as murder, enforced disappearances, torture, war crimes and crimes against humanity, which require compulsory criminal accountability as per international law. Section 26 of the present Act is almost similar to Section 23 of the erstwhile Ordinance, with there being no substantial difference between the two, and as such this is contrary to Articles 12, 19, 20, 24 (9) and the right to constitutional remedies grantd by Article 32 of the Interim Constitution and liable to be declared void.

The jurisdiction provided to the Commission to provide for amnesty in crimes of a serious nature is contrary to the principles of international law. Nepal is a State party to the International Covenant on Civil and Political Rights, Convention gainst Torture as well as all the important human rights Conventions. In addition, in international humanitarian law, it is also a State party to the Geneva Conventions. Any individual who is a victim of violations of rights or freedoms has the guarantee of effective legal remedies under international human rights law. This right has been protected in the provisions contained in Article 8 of Universal Declaration of Human Rights, Article 2 of International Covenant on Civil and Political Rights, Article 14 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 39 of Convention on the Rights of the Child, Article 91 of the Optional Protocol of the Geneva Convention, 1949 and Articles 68 and 75 of the Rome Statute of the International Criminal Court. Article 2(3)(a) of the International Covenant on Civil and Political Rights, 1966 provides for the existence of the right to effective remedy. As Section 26 of the Act provides that the Commission may grant amnesty even in crimes of a serious nature, it is more than certain that a situation may arise resulting in the failure of the victims to get effective remedy. Further interpreting this right, the Human Rights Committee in its General Comment No. 29 regarding the Derogations During States of Emergency, states that the right to remedy is a treaty obligation inherent in the Covenant as a whole and Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide effective remedies for any violation of the provisions of the Covenant even for violations during the period of emergency. -(Paragraph 14, Human Rights Committee, General Comment 29, States of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (31 August, 2001)]. Similarly, the United Nations Human Rights Commission on 25 April 2002, 25 April 2003, 21 April 2004 and 21 April, 2007 unanimously passed Special Resolutions against providing amnesty in cases of serious violations of international human rights and humanitarian law.

In addition, the United Nations Human Rights Committee in its 110th meeting, while reviewing the second, third and fourth Periodic Reports of the Government of Nepal, recommended that the formulation of any law regarding transitional justice mechanisms should not provide for amnesty regarding crimes of a serious nature and should follow the judgment of the Supreme Court delivered on January 02, 2014. The main portion regarding the recommendations is as follows:

"(C) create, as a matter of priority and without further delay, a transitional justice mechanism in accordance with the Supreme Court writ of mandamus of 2 January 2014 and ensure its effective and independent functioning in accordance with international law and standards, including by prohibiting amnesties for gross violations of international human rights law and serious violations of international humanitarian law;" (concluding observation on Nepal's second, third and fourth periodic report by UNHRC).

The act of providing immunity from criminal responsibility to perpetrators of crimes of a serious nature, on one pretext or the other, violates the victims' right to live with dignity. Victims cannot be excluded from equal protection of law and justice, regarding the incidents of violations during the period of armed conflict. The provisions of lesser facilities and rights to the victims of crimes of armed conflict, as compared to other victims, are contrary to the right to equality guaranteed by Article 13 of the Constitution. This fundamental right is guaranteed to us, like any other citizen, and Sections 22, 25 and 26 of the Act create undue restrictions on this right, which is contrary to the Constitution, and, thus, such provisions of the Act are liable to be declared null and void as per Article 107(1) of the Constitution.

The provision of Section 26(1) of the Act provides for "Notwithstanding whatsoever mentioned in Section 25, while carrying out investigation pursuant to this Act, the Commission may, if it deems appropriate to grant amnesty to the perpetrator on the basis of norms and conditions as stated in sub-section (4), (5) and (6), may make recommendation to the Government of Nepal mentioning sufficient grounds thereof". Sub section (5) provides for "If an application is submitted for amnesty pursuant to Sub-section (3), considering the consent or dissent of the victim and gravity of the incident, the Commission shall have to decide on recommendation for amnesty." Instead of making the consent of the victim a prerequisite to amnesty, this has made it a matter of discretion for the Commission. With regard to similar provisions in the erstwhile Ordinance, the Supreme Court has established the precedent that "the participation and consent of the victim is mandatory" even in crimes where amnesty could be provided. The provisions of the Act are contrary to such precedent.

Similarly, Section 22 of the Act has granted power to the Commission to effect reconciliation between the victim and the perpetrator. The provision of Section 22(1), which provides that "If a perpetrator or a victim files an application before the Commission for reconciliation, the Commission may cause to reconcile between the perpetrator and the victim", creates undue pressure on us the victims, and provides for a situation where the Commission can declare that reconciliation has taken place without our consent. This has dislodged the established jurisprudence and norms that reconciliation can take place only with informed and independent consent. The provision of reconciliation provided in Section 22 needs to be read together with the provision of Section 25 relating to recommendation for taking action. Section 25(2)(a) limits the jurisdiction of the Commission to recommend for action if reconciliation has been made pursuant to Section 22. Thus by making provisions in Section 22 for reconciliation even without the consent of the victim and in Section 25 limiting the Commission's power to recommend for action in cases where reconciliation has taken place it is intended to have the objective of providing immunity to the perpetrators from criminal prosecution. Principle No. 10 of the UN Basic Principles on Right to Remedy and Reparation has clear provisions regarding the treatment of victims. It states that "Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatizing in the course of legal and administrative procedures designed to provide justice and reparation. "Thus Section 22 of the Act should be declared null and void and a provision should be made to ensure the consent of victims.

Certain provisions of the Act also restrict and control the limits of judicial independence, thus being contrary to Article 100 of the Interim Constitution which provides that the powers relating to justice shall be exercised only by the Courts and other judicial bodies. Section 13(2) of the Act provides that "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission in consultation with the concerned court or body concerning the cases under consideration shall investigate the cases relating to the incidents occurred during the armed conflict." Similarly, Section 13(4) empowers the Commission to decide any dispute concerning whether or not any incident took place in the context of the armed conflict. If these provisions are implemented in their existing form, the cases, which after investigation have come to regular courts for justice resolution as per the existing law, will come into the jurisdiction of the Commission without the consent of the Court. This will lead to the creation of an unusual and inconsistent situation, where a judicial body has been replaced by a non-judicial body. Therefore these provisions of the Act clearly contravene Article 100 of the Constitution.

Section 13(4) provides the Commission with the sole authority to decide any dispute concerning whether or not any incident took place in the context of the armed conflict. As such disputes can only be decided in accordance with the interpretation of the Constitution and law, the provision of Section 13(4), by providing such powers solely to the Commission, has curtailed the jurisdiction of the judiciary. Concerning incidents that have not yet been prosecuted, the Commission may be able to decide whether or not it took place in the context of the armed conflict. However, to provide the Commission with similar authority even for cases already under consideration in the Courts can raise serious questions regarding the interpretation of law. Similarly, the provisions of Section 13(3), which provide for the Commission to investigate the complaints under consideration in different bodies which have the legal responsibility to investigate or prosecute as per existing laws, are certain to frustrate the autonomy and dignity of such bodies. This might also create sensitive situations regarding issues of accountability and preservation of evidence. Thus, the provisions of Section 13(3) are not in accordance with the Constitution, and encroach upon the limits of judicial independence as guaranteed by the Interim Constitution.

Section 29(1) of the Act provides that "The Attorney General or a Public Prosecutor designated by him shall, after necessary investigation, decide on the matter whether a case can be instituted or not against any person, if the Ministry |1| writes on the basis of the recommendation of the Commission to prosecute any person found guilty on allegation of serious human rights violations." Such provision creates the possibility that even in cases where the Commission recommends for action, the process can get stuck in the Ministry on the basis of political agreement. With regard to the Commission's recommendations for action as per the provision of Section 29(1), there is a possibility of further interference by the Ministry. In addition, the provision regarding the Attorney General making a decision about whether or not to institute a case only if it is so recommended by the Ministry constricts the power of the Attorney General as guaranteed in Article 135 of the Constitution. Thus, the provision of Section 29 being contrary to Article 135 of the Constitution is liable to be declared void.

Section 24 of the Act provides for the return of seized or confiscated property. It provides that "While carrying out investigation pursuant to this Act, if it is found that someone has seized or confiscated any property, the Commission may recommend to Nepal Government for return of such property from the concerned person". Thus this provision only fixes individual accountability with regard to any property seized or confiscated during the armed conflict. However, to guarantee the right of the victim to adequate compensation, there needs to be a suitable amendment or judicial interpretation of this provision in order to ensure that the parties to the conflict, individuals, institutions and organizations involved in such seizure or confiscation of property are held responsible as well. Otherwise, the excesses committed by the groups or institutions involved in the armed conflict will remain unaddressed.

The Supreme Court, in its Order in the previous case regarding the Ordinance, had required the enactment of a law criminalizing enforced disappearance, torture and other offences of a serious nature. The Supreme Court in previous cases of Rajaram Dhakal vs. Office of the Prime Minister & Others, Rajendra Ghimire vs. Office of the Prime Minister& Council of Ministers & Others and Rajendra Dhakal vs. Ministry of Home Affairs & Others respectively passed orders to make a law criminalizing war crimes for the implementation of the Geneva Conventions, to criminalize torture by making a law as per the Convention Against Torture and to make a law criminalizing enforced disappearance and providing for the possibility of retrospective prosecution in such offences. However, these orders passed many years ago are yet to be implemented. Therefore, a relevant and necessary order is required to be issued from this Court with regard to the creation of a timetable for the effective implementation of the prior orders of the Supreme Court regarding transitional justice mechanisms and related orders.

Similarly, the provision of Section 10 which provides that "A gazetted special class officer of the Judicial Service appointed or designated by the Nepal government shall work as the Secretary of the Commission," and the provision of Section 11, which reads as, "The Ministry shall make available personnel required for the Commission. While thus making the personnel available, the Ministry may consult the Commission" tend to curtail the independence of the Commission. Further, the provision of Section 12 providing for "The Ministry shall make arrangements for building, materials and other resources required for the functioning of the Commission" puts the Ministry in complete control of all of the financial activities of the Commission and is a direct restriction on the independence of the Commission. In addition, Section 44 which provides for "The Government of Nepal, in consultation with the Commission, may frame necessary Rules in order to implement this Act" shows that the Commission cannot remain independent. The provisions of the government providing the Secretary as the chief administrative officer, providing the required personnel, making arrangement of required resources as well as the framing of necessary Rules by the government defeat the objective of creating an "independent, impartial, competent and accountable" Commission and bring the Commission entirely within the control of the government. Therefore, the Commission is unable to function independently.

The aforementioned provisions of the Act promulgated by the Respondents, especially the provisions of Sections 13, 22, 24, 25, 26 and 29, have violated our fundamental rights as well the fundamental rights of hundreds of thousand victims of the armed conflict. In particular, the fundamental rights such as the right to live with dignity and the right against deprivation of liberty (Article 12), right to equality (Article 13), right relating to employment (Article 18), right to property (Article 19), rights of women (Article 20), right relating to justice (Article 24), right to a fair trial (Article 24 (9)), right against preventive detention (Article 25) and right against torture (Article 26) have been violated.

Therefore, apart from the facts, laws and evidences mentioned in the foregoing paragraphs and the precedents laid down by the Supreme Court, based on Articles 12(1), 13(1), 24(9), 32, 33, 100,116 and135 of the Interim Constitution of Nepal, 2007, we request for the issuance of the following orders pursuant to Article 107(1), (2) to ensure practical guarantee of we victims' inalienable right to truth, justice and reparation:

a) To declare inconsistent and void the clause "in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty" used in Section 26(2) of the impugned Act which reads as "Notwithstanding whatsoever mentioned in Sub Section (1), the Commission shall not recommend for amnesty to the perpetrators involved in rape and other crimes of serious nature in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty"; moreover, to ensure through a constitutional interpretation that there is no amnesty for inexcusable crimes such as torture, enforced disappearances, extra judicial killings, crimes against humanity, war crimes and genocide; to issue an order of Mandamus against the Respondents to present an amendment Bill in the Legislature-Parliament to frame clear legal provisions to make such crimes inexcusable.

b) To declare inconsistent and void the provision of Section 13(2) of the impugned Act which provides that "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission in consultation with the concerned courts or bodies concerning the cases under consideration shall investigate the cases relating to the incidents occurred during the armed conflict" and the provision of Section 13(4) which provide that "In case of a dispute concerning whether or not any incident took place during the armed conflict, the Commission shall decide on that matter" as these provisions frustrate judicial independence and thwart the victims' right to gain effective judicial remedies from an independent and capable judiciary; moreover, to issue an order to the Respondents to amend the Act in order to redefine and manage the relationship between the Commission and the judiciary remaining within the bounds of judicial independence and the victims' right to effective judicial remedies.

c) To issue orders of Mandamus and other appropriate orders against the Respondents to make necessary amendments to Sections 22(1), 24, 25(3), (4), 26(5) and 29(1) of the disputed Act as per the jurisprudence established by the Supreme Court in its previous rulings in order to ensure the legal guarantee that no process of reconciliation can take place without the informed consent of the victims, and to establish that the consent of the victims is a mandatory legal requirement for amnesty measures, to make provisions to empower the Commission to recommend directly to the Attorney General for prosecution and to make ensure that the accused does not get immunity from criminal responsibility on the basis of any departmental action and to make organizations accountable as well to ensure the return of captured property to the concerned owners.

d) To issue an order of Mandamus for making soon necessary law for implementation of also the previous orders issued by the apex Court in this context, as the objective of transitional justice cannot be fulfilled until and unless human rights violations including custodial deaths, rape, disappearances, torture, genocide, war crimes, crimes against humanity, forced displacement etc. are criminalized and punishment for the guilty is ensured, based on international law and standards.

e) To issue an order of Mandamus to the Respondent Attorney General, in the context of ensuring transitional justice under the constitutional obligation of Article 135 (3)(b) of the Interim Constitution of Nepal, to monitor, or cause to be monitored effectively ,with a necessary work plan for appropriate implementation of the orders issued and legal principles laid down by the Supreme Court in the context of ensuring transitional justice, and to present regular reports to the Supreme Court on the status of such implementation.

It was further contended in the writ petition that in order to ensure that the purpose of sustainable and just management of transitional justice is not defeated, an interim order should be issued pursuant to Rule 41 of the Supreme Court Rules, 2049 in the name of the respondents asking them not to implement or cause to be implemented the impugned provisions, namely, Section 22 relating to reconciliation, Section 25(2) relating to not recommending for action in regard to matters which have been already reconciled, and Section 26 relating to provisions regarding amnesty till the final decision of this writ petition.

Contents of the Order issued by this Court:-

A Single Bench of this Court issued an order on 2014-06-05 to the respondents asking them as to why not to issue the orders prayed for by the petitioners, and to submit their written replies within 15 days excluding the time consumed en route through the Office of the Attorney General. Moreover, as regards the demand for interim order, as it seems appropriate to arrive at a conclusion after hearing both the parties, it is hereby ordered to schedule the case for hearing on 2014-06-12 for the purpose of discussion on the issue and to submit the case file as per the Rules.

The Court in its order of 2014-06-12 listed the matter for full hearing on 2014-07-10 after the end date of receiving the reply of the respondents. As this writ petition deals with issues of transitional justice and requires speedy resolution, it has been granted priority as per Rule 63(3)(f5), of the Supreme Court Regulations, 2049.

Contents of the written reply submitted by Under Secretary Dr. Rabi Sharma Aryal on behalf of the Respondent Legislature-Parliament Secretariat:-

With regard to the subject matter of the writ petition, the writ petitioners have failed to disclose any reason or basis to make this Secretariat a respondent party. This Secretariat has no role in the process of creating the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act, 2071 (2014). The Secretariat has only functioned as per the process determined by law, in accordance with the Constituent Assembly (Operational Procedures of Legislature-Parliament) Regulations, 2070. With regard to the laws created by the Government, the Secretariat has no information on the circumstances of their origin and the intent behind the inclusion of specific provisions in such laws. The Secretariat is also not in a position to comment on the suitability of including such provisions. As the Secretariat does not draft any Bill and there is no other reason to make the Secretariat a respondent to the writ petition, no order need to be issued in respect to the Secretariat. Therefore, in regards to the Secretariat, this writ petition needs to be quashed.

Contents of the written reply submitted by Under Secretary Dr. Rabi Sharma Aryal on behalf of the Respondent Legislature-Parliament:-

There is no reason to make the Legislature-Parliament a respondent with regard to the writ petition praying for directive orders to declare void or amend the law on the basis that certain provision of the Act are contrary to the Constitution, when the law has been enacted by the Legislature-Parliament as per the existing legal procedure. The present writ petition which has unnecessarily made the Legislature-Parliament a party should be quashed at the first instance itself.

Without intending any adverse inferences on the arguments made in Paragraph 3 of the writ petition,, a look at even the claim of the petitioners shows that out of the three organs of the State, it is the role of the Legislature to enact laws as per requirements. Even in the context of the present Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071(2014) the Legislature-Parliament, has simply fulfilled that role following the existing legal procedure. The Act has been passed by the Legislature-Parliament on the basis of political consensus, keeping in mind the peace agreement post the armed conflict as well as other agreements, for the establishment of long lasting peace in the country. The argument that the principles, methods and processes adopted in one country have to be replicated entirely in another country is neither in tune with the time nor relevant. This Act has been discussed and passed by the parliament to bring long lasting peace, to ensure that the wounds caused by the long conflict are erased in an easy manner, to promote social good will in the society and for the good of the country with the intention of guiding the country towards a positive direction. To argue that such Act is against the international norms and has been promulgated contrary to the Orders of the Court is factually incorrect and not based on the actual subject matter. Further, as the Act has been passed fulfilling all the requirements of the Constituent Assembly Operational Procedures Regulations, 2070 and as per the wishes of the people, no order should be issued as demanded by the writ petitioners, and, hence, the writ petition should be quashed.

Contents of the written reply submitted by Respondent Subash Chandra Nembang, Speaker, Legislature- Parliament:-

A look at the subject matter of the writ petition shows that the writ petitioners have failed to disclose any reason or basis to frame the Speaker of the Legislature-Parliament as a respondent party. The Constituent Assembly (Operational Procedures of Legislature-Parliament) Regulations, 2070 is clear on the procedures to be followed with regards to Bills tabled by the government for the enactment of necessary laws as required. The Speaker only functions in accordance with the Constituent Assembly (Operational Procedures of Legislature-Parliament) Regulations, 2070. With regard to the laws enacted by the Government, the Speaker has no information on their background and the intent behind the inclusion of specific provisions in such laws. The Speaker is also not in a position to comment on the suitability of including such provisions. The Speaker is also not directly involved in the process of law formulation. The chief responsibilities of the Speaker are to conduct and regulate the meetings of the Legislature-Parliament. The Speaker cannot evade his duty to certify the Bill and to present the same for certification before the President as per Rule 83 of the Constituent Assembly (Operational Procedures of Legislature-Parliament) Regulations, 2070, after it has been passed by the Legislature-Parliament either unanimously or through majority voting. It is not just to frame as respondent when any act prohibited by law has not been committed and when there is not any other basis or reason. Therefore, the present writ petition which has made me a respondent party without any legal basis and reason is liable to be quashed in my case, and, hence, should be quashed.

Contents of the written reply submitted by Secretary Mr. Bhesh Raj Sharma on behalf of Respondent Ministry of Law, Justice, Parliamentary Affairs and Constituent Assembly:-

The Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014) has been issued to make the necessary provisions for the establishment of the Investigation of Disappeared Persons, Truth and Reconciliation Commission, as provided for in clause (s) of Article 33 of the Interim Constitution of Nepal, 2007 and Article 5.2.5 of the Comprehensive Peace Accord, which is included as Schedule 4 of the Constitution. Unlike the claims of the writ petition, this Act has not been enacted to allow perpetrators to go scot free in a partisan manner. Instead, as clarified by the Preamble of the Act, the Act exists to investigate the facts about those persons involved in serious violations of human rights and crimes against humanity committed during the course of conflict and to recommend prosecution for the guilty, to investigate enforced disappearances and to create mutual feelings of respect and tolerance in the society and long lasting peace through an atmosphere of reconciliation. With regard to those objectives and as per the orders of the Supreme Court, the Act provides for the establishment of separate, impartial and independent Commissions for the purpose of investigation of enforced disappearances, and truth and reconciliation. Section 3 of the Act provides for a Recommendation Committee with a former Chief Justice of the Supreme Court as the Chairperson in order to accomplish the creation of the Commissions in an impartial and independent manner. Further, the Act guarantees that the Commissions will be able to fulfill their responsibilities in an independent and impartial manner. With regard to the issue of constitutional obligations, the writ petition is not able to clearly specify which particular provision(s) of the Act stands contrary to which specific Article(s) of the Constitution, and neither does it specify the reasons for such unconstitutionality. Therefore, this writ petition presented in a baseless manner is liable to be quashed.

The writ petition has prayed to declare the phrase "in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty" used in Section 26(2) as inconsistent and hence liable to be repealed. As one of the main objectives of the present Act includes the investigation of offences committed during the period of armed conflict, It has been provided that the Commission formed in pursuance of this objective shall conduct investigation of such incidents and the Commission cannot recommend amnesty for the perpetrators involved in crimes of a serious nature in which the Commission does not find sufficient reasons and grounds for amnesty. As this provision does not allow amnesty to perpetrators involved in incidents of serious violations of human rights and ensures action against them as per Section 25, this demand of the present writ petition is also irrelevant and liable to be quashed.

As the present Act has been issued for the management of transitional justice, and, pursuant to the provisions of Section 13(2), the Commission can only investigate and make recommendations regarding the 'sub judice' cases related to the incidents that occurred during the period of armed conflict in consultation with the concerned courts or bodies. This does not harm the judicial independence of such courts or bodies. Likewise, as the Commission is to be created as per the present Act and in the context of the armed conflict, the power granted to the Commission to decide impartially whether or not any incident had occurred in the context of the armed conflict cannot be held otherwise and, therefore, the writ petition is liable to be quashed.

Section 22 provides that no reconciliation can take place without the consent of the victims while the provision of Section 26(5) provides importance to the role of the victims by considering their consent/dissent while granting amnesty. Similarly, the provisions of Section 25(3) and 25(4) allow for the perpetrators of incidents of serious violations of human rights to be brought within the boundaries of prosecution. Further, Section 29(1) provides for the Commission to recommend to the Government of Nepal to prosecute perpetrators of serious human rights violations, and based on such recommendation, the Peace and Reconstruction Ministry shall write to the Office of the Attorney General. In this context, the situation of perpetrators gaining immunity does not arise. Therefore, the writ petition seeking annulment of the Act and expressing baseless doubts about the provisions of this Act issued with the objective of establishing sustainable peace in the society in accordance with the intent and spirit of the Interim Constitution and the Comprehensive Peace Agreement, is liable to be quashed.

Contents of the written reply submitted by Chief Secretary Mr. Lilamani Poudyal on behalf of Respondents Office of the Prime Minister and Council of Ministers, and the Council of Ministers :-

The Interim Constitution of Nepal, 2007 provides for the establishment of transitional justice mechanisms as an obligation of the State. Article 33 Clause (s) of the Constitution provides for the constitution of a high-level Truth and Reconciliation Commission to investigate the facts about those persons involved in serious violations of human rights and crimes against humanity committed during the course of conflict. A similar provision is also found in Section 5.2.5 of the Comprehensive Peace Agreement. As per the aforementioned provisions, and due to the necessity to address the incidents of violations of human rights in the course of armed conflict as soon as possible, the Bill on Investigation of Disappeared Persons, Truth and Reconciliation Commission was presented by the Government of Nepal before the Legislature-Parliament, and became an Act only after being adopted following extensive debate and discussion in the Legislature-Parliament.

As regards the claim of the writ petitioners that the provisions of Section 13(2) "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission in consultation with the concerned courts or bodies shall investigate the cases relating to the incidents occurred during the armed conflict which are under consideration before those courts or bodies, and the provision of Section 13(4) "In case of a dispute about whether or not any incident took place during the armed conflict, the Commission shall decide on that matter" being contrary to the Constitution should be repealed, as the incidents of violations of human rights committed in course of conflict during the period of armed conflict are of a different nature and complex, there has been an international practice to establish transitional justice mechanisms to conduct a special investigation required in such cases to establish the truth and as this international practice has been also accepted by the Constitution, the provisions of the Act need to be looked at in this particular context. As regards the cases which are, prior to the establishment of the transitional justice mechanisms, under consideration before any investigating body or the Courts or any other authority, the Commission can investigate such cases in consultation with such concerned court or body. This does not seek to replace the existing provisions and mechanisms nor can it be said that it interferes with the independence or competence of such bodies. This also does not affect the victims' right to justice.

With regard to the claims of the writ petitioner that the provision of Section 22(1) creates undue pressure on the victims and that the Commission can declare that reconciliation has taken place without the consent of the victims, it has to be understood that reconciliation is the manifestation of the victims' satisfaction. There can be no dispute that the independent consent of both the parties is necessary for reconciliation. No provision in the Act allows the Commission to effect onesided reconciliation between the perpetrator and the victim, without the consent of the victim. The claims of the writ petitioners that an independent and competent Commission would go against the basic principles of human rights by creating pressure on the victims for reconciliation or effect one way reconciliation is entirely imaginary and presumptuous. There can be no valid claim to dub any particular provision of the Act as contrary to the Constitution based solely on imagination and presumptions.

With regards to the claim of the writ petitioner that the provision of Section 29(1) of the Act should be repealed as it does not allow the Commission to directly write to the Attorney General with regard to its recommendation of action against perpetrators of serious violations of human rights, the Commission is to be formed through a decision of the Government of Nepal, the requirement of the Commission to present its report to the Government of Nepal is simply a managerial process. After receiving the report from the Commission, the Act does not provide the Peace and Reconstruction Ministry any discretionary powers to not to write to the Attorney General regarding the implementation of the Commission's recommendation for prosecution. As the provision requires the Peace and Reconstruction Ministry to write mandatorily to the Attorney General regarding such recommendations, there is no reason or basis to repeal it as per the claims of the writ petitioner.

Defining serious violations of human rights in line with international principles and norms, Section 2(j) has described the following acts as serious violations of human rights: acts of killing of unarmed persons or committed systematically or targeted against civilian population during the armed conflict, abduction and hostage taking, enforced disappearance, causing mutilation or disability, physical or mental torture, rape and sexual violence, looting, seizure, breaking or arson of private and public property, forceful eviction from house and land or displacement by any other means, or any types of inhuman act committed against international human rights or humanitarian law.

The aforesaid definition seems to be very expansive. With regard to the offences clearly defined in Sub -Sections 1 to 9, this definition not only includes acts targeted against unarmed persons and civilians but also includes acts committed systematically against any type of individual or civilian population. Further, the provision of SubSection (9) expands the definition of serious violation of human rights to include any type of inhuman acts or crimes against humanity committed against international human rights law, international humanitarian law and crimes against humanity and makes the provisions of the human rights instruments, to which Nepal is a party, as well as the principles and criteria of customary international law applicable to it.

With regard to the claim of the writ petitioner that the provision of Section 26(2), in the context of the armed conflict, allows the Commission to recommend amnesty even in cases of a serious nature, it is important to note that interpretation of any Act requires having a look at all the provisions of the Act in totality. The Preamble is also an integral part of the Act and is also used as an aid to the interpretation of an Act. The Commission to be formed under the Act is a high level Commission and Section 3(3) provides for the establishment of a Recommendation Committee to recommend the Chairperson and other Members to be appointed to the Commission. The Recommendation Committee consists of a person designated by the Government of Nepal from among the former Chief Justices of the Supreme Court as the Chairperson and the Chairperson of the National Human Rights Commission or a member of the said Commission as designated by him/her as a member. In addition, the Commission shall have three other members, including at least one woman from among the human rights activists, psychologists, jurists, forensic experts, conflict experts, sociologists, women rights activists, or any other persons involved in peace process. There is no objective basis to doubt the independence, capability and integrity of the Commission, which is to be formed based on the recommendation of an impartial and independent Recommendation Committee.

Section 6(2) provides for the establishment by the Government of Nepal of a three member enquiry committee under the chairpersonship of former chief justice to examine accusations of dereliction of duty or lack of competence or moral turpitude against either the Chairperson or other members of the Commission. The Government of Nepal may remove the Chairperson or other members from their post on the recommendation of such Committee. This shows that there is no reason to doubt that the Commission is an independent and competent body, which is not under the control of the government. In addition, the provisions of Sections 13,14,15,17,18,19,20 and Section 30 which provide for the National Human Rights Commission to monitor the status of implementation of the recommendations made in the Commission's report show that the independent, competent and impartial Commission does not work to promote impunity or to grant amnesty in serious cases of human rights violations and immunity from criminal liability. To doubt and presume otherwise is neither logical nor just and the claims of the writ petitioners in this regard are imaginary.

The provisions contained in Sections 26(1) and 26(2) need to be examined together with the provision of Section 2(j) of the Act. As it would be incompatible with the overall objective and scheme of the Act to presume that the provisions contained in Section 23(1), (2) provide for the possibility of a blanket amnesty to the individuals engaged in serious violation of human rights, such an interpretation cannot be made. The provisions of Section 26 do not mean that the Commission can grant amnesty to individuals engaged in any kind of offence. Section 26(2) provides that the Commission can recommend for such amnesty to the Government of Nepal, only if a perpetrator of grave violations of human rights has repented for such an act and apologized to the victim, and there exist sufficient reasons and grounds for amnesty. Apart from this, no provisions of the Act grant any authority to the Commission to recommend amnesty for any person found guilty of serious violations of human rights, and, therefore, there is no need of quashing the impugned phrase contained in Section 26(4).

If the provision of reconciliation made in Section 22 is studied, it shows that the Commission cannot effect one-sided reconciliation without the consent of the victims and the perpetrators. As the provision of Section 22(2) requires that in course of the reconciliation process the Commission shall ask the perpetrator to repent and seek an apology from the victim for the past misdeeds, reconciliation cannot take place unless the victim is satisfied.

With regard to the claim of the writ petitioner to issue an order of Mandamus to enact, in accordance with the international obligation, appropriate laws declaring as criminal offences the violation of human rights including genocide, war crimes, crimes against humanity, enforced disappearance and torture and to ensure appropriate punishment proportionate to the seriousness of the crime, there is no dispute that it is the obligation of the State to guarantee victims' right to justice by criminalizing serious violations of human rights and crimes against humanity. Nepal has become a State party to the Geneva Conventions, 1949 concerning prevention of genocide, war crimes and crimes against humanity, whereas Nepal is also a State party to the Convention against Torture, 1984.The drafting of the Act for implementation of the Geneva Conventions is at its final stage. Similarly, the Penal Code Bill, 2068 which declared the act of enforced disappearance as a crime had been presented before the erstwhile Legislature-Parliament. The Government of Nepal stands committed to present those Bills before the Legislature-Parliament after fulfilling the required procedures.

Therefore, the Act does not contain provisions for providing amnesty to perpetrators of serious violations of human rights and the crimes against humanity in an absolute manner. The Act guarantees the independence, competence and autonomy of the Commission to be formed under the Act. Further, any interpretation of any provision should be done in totality and as per the objects and purpose of the Act. The Act does not provide the Commission with the power to recommend absolute amnesty to the perpetrators of serious violations of human rights, and requires the perpetrator to repent and to apologize in an appropriate manner to the satisfaction of the victim. The Act neither restricts nor does it have the power to restrict the government from enacting laws to punish the perpetrators of serious violations of human rights and the crimes against humanity. As the writ petition has been filed on the basis of self interpretation of the Act and based entirely on the petitioners' presumptions and doubts regarding an issue not envisaged by the Act, and as there is no reason or basis for the Supreme Court to issue orders in this regard and also as the concerns of the victims have been addressed by the Act, the writ petition is liable to be quashed.

Contents of the written reply submitted by Deputy Attorney General Durgabandhu Pokharel on behalf of Respondent Office of the Attorney General:-

The writ petition does not state as to what actions of the Office of the Attorney General have affected the rights of the writ petitioners. Further, the writ petition also does not advance a plea regarding violation of any constitutional duty by the Office of the Attorney General. Therefore, there is no appropriate ground for the issuance of directive orders as prayed for in the writ petition, and the writ petition is liable to be quashed.

Article 135(3)(b) of the Interim Constitution of Nepal, 2007 has prescribed a constitutional obligation of the Attorney General to monitor, or cause to be monitored, whether or not any interpretation given to a law or any legal principle laid down by the Supreme Court in the course of hearing of lawsuits has been implemented, and this Office has continued to fulfill this obligation. The writ petitioner has not claimed about the failure of the Attorney General to monitor the implementation of a precedent laid down in any particular case or the general failure to fulfill this constitutional obligation. A perusal of all the contents of the writ petition shows that it has been filed framing this Office as well as a respondent and seeking the issuance of an order of Mandamus in the context of the Act of 1971 made with regard to investigation of disappeared persons, truth and reconciliation. The above-mentioned Act was promulgated on 2071 /01 /28 and is currently in the course of implementation, and it is an obligation of the Office of the Attorney General to undertake the functions, duty and responsibility as provided by the Act. And as it is not a plea of the petitioners that the Office of the Attorney General has failed in such obligations, the writ petition is liable to be quashed.

Contents of the written reply submitted by Secretary Dhan Bahadur Tamang on behalf of Respondent Peace and Reconstruction Ministry:-

The human rights and fundamental rights guaranteed by national and international laws include certain rights which are inalienable in all circumstances. The incidents of violations of human rights during the armed conflict are of a different nature and dimension, and there is an international practice to establish transitional justice mechanisms to complement regular criminal justice in conflict hit countries, so as to conduct the special investigation required in such cases to establish the truth and preserve the victims' right to justice. The decade long armed conflict ended with the signing of a Comprehensive Peace Agreement between the Government of Nepal and the erstwhile armed rebels. Both the Comprehensive Peace Agreement and the Interim Constitution created after the Peace Agreement, provide for the creation of transitional justice mechanisms. The Act was promulgated as per the aforementioned instruments, and due to the necessity of addressing the incidents of violations of human rights in the course of armed conflicts as soon as possible.

The claims of the writ petitioners that Sections 13(2), 13(3) and 13(4) being contrary to the Constitution should be declared null and void need to be examined in the context that the incidents of violations of human rights during the armed conflict are of a different nature and complexity, and there is an international practice to establish transitional justice mechanisms to conduct a special investigation required in such cases to establish the truth. This international practice has also been accepted by the Constitution, and the provisions of the Act, therefore, need to be examined with this relevant background in mind. As for the cases prior to the establishment of the transitional justice mechanisms, and under consideration before any investigating body or the Courts or any other authority, the Commission can investigate such cases in consultation with such concerned courts or bodies. Such a provision does not seek to replace the existing provisions and mechanisms nor can it be said to interfere with the independence or competence of such bodies. This also does not affect the victims' right to justice.

With regard to the claims of the writ petitioner that the provisions of Section 22(1) be declared void, as it creates undue pressure on the victims and allows the Commission to declare that reconciliation has taken place even without the consent of the victims, no provision in the Act allows for the Commission to effect one way reconciliation between the perpetrator and the victim, without the consent of the victim. The allegation that an independent and competent Commission would go against the basic principles of human rights by creating pressure on the victims for reconciliation or it would effect one -sided reconciliation is entirely imaginary and not based on actuality. Imagination and skepticism alone cannot allow for the claim that a particular provision of the Act is contrary to the Constitution.

As regards the claim of the writ petitioners that the provision of Section 29(1) of the Act should be declared void as it does not allow the Commission to directly write to the Attorney General regarding its recommendation of action against perpetrators of serious violations of human rights, the Act provides that the Commission, while presenting its report to the Government of Nepal including the matters regarding the investigations conducted as per the law, it will be written to the Attorney General for the implementation of its recommendations through the Peace and Reconstruction Ministry. As none of the provisions in the Act provide the Peace and Reconstruction Ministry with any discretionary power to create obstacles in this process, there is no reason or basis to declare the provisions void as per the claim of the writ petitioners.

As Section 2(j) of the Act, which defines "serious violations of human rights", adequately covers the issue of serious violations of human rights, and has fully internalized the international principles and norms, there is no situation as described in the plea of the petitioners. With regard to the claim of the writ petitioners that the provision of Section 26(2) allows the Commission to recommend amnesty even in cases of a serious nature committed in the context of the armed conflict, it is important that the interpretation of any Act requires looking at all the provisions of the Act in totality. As it is neither reasonable nor just doubt or presume that an independent, competent and impartial Commission shall act in a way to promote impunity or to provide immunity from criminal liability or to grant amnesty in serious cases of human rights violations, and Section 30 of the Act also provides for the National Human Rights Commission to monitor the status of implementation of the recommendations made in the Commission's report, the claim of the writ petitioners is meaningless.

The provisions contained in Sections 26(1) and 26(2) need to be examined together with the provisions of Section 2(j) of the Act. As, it would be incompatible with the overall objective and scheme of the Act to presume that the provisions contained in Sections 26(1) and 26(2) provide for the possibility of a blanket amnesty to the individuals engaged in serious violation of human rights, such an interpretation cannot be made. The provisions of Section 26 do not mean that the Commission can provide amnesty to individuals engaged in any kind of offence. With regard to the application for amnesty in cases of serious human rights violations to be submitted pursuant to Section 26(3), Section 26(4) provides that the perpetrator shall be required to express the following commitment: confession by the applicant of having committed gross violation of human rights, repentance for such wrong acts and apology before the Commission in a manner satisfactory to the victim, and a commitment not to repeat such acts in the future. No provision of the Act provides the Commission with the power to recommend amnesty for any perpetrator who has not confessed to have committed gross violation of human rights and has not apologized to the victim in that regard.

A perusal of the provision of reconciliation contained in Section 22 of the Act shows that the Commission cannot effect one-sided reconciliation without the consent of the victim and the perpetrator. As the provision of Section 22(2) requires the Commission, in regard to reconciliation, to ask the perpetrator to repent and to seek apology from the victim for the past misdeeds, reconciliation cannot take place unless the victim becomes satisfied. Further, the provision of Section 26 regarding amnesty has to be read together with the provision of Section 22 which provides for reconciliation. There is no situation where the Commission can recommend for amnesty until and unless there is agreement between the perpetrator and the victim, and the perpetrator has apologized to the victim and repented accordingly. Thus, the plea of the writ petitioners is not based on facts.

Therefore, the Act does not include the provisions of absolute amnesty with regard to grave violations of human rights and crimes against humanity, and the Act guarantees the independence, competence and autonomy of the Commission formed under the Act. Interpretation of any phrase used in any Section or Sub-Section of the Act ought to be interpreted in accordance with the objective of the entire Act in view of the entire provisions of the Act. The Act does not provide the Commission with any power to recommend subjectively amnesty for the perpetrators of grave violation of human rights. Prior to any recommendation for amnesty, the perpetrator has to repent and apologize to the satisfaction of the victim. The Act does not prevent the Government from enacting any law to punish those guilty of serious violations of human rights or crimes against humanity. Since the writ petition is based on a self-made interpretation of the Act by the petitioners based entirely on presumption and doubt and concerned with a subject not even remotely envisaged by the Act, there is no reason or basis for the Supreme Court to issue orders in this regard; therefore, the writ petition is liable to be quashed.

Brief of the pleadings of the learned Senior Advocate Sapana Pradhan Malla, learneed Advocates Baburam Giri, Gobinda Prasad Sharma 'Bandi', Hari Phuyal, Raju prasad Chapagain, Om Prakash Aryal, Dr. Chandrakanta Gyawali, Dinesh Tripathi, Gyanendra Raj Aran, Laxmi Pokharel and Ashik Ram Karki appearing on behalf of the writ petitioners :-

A look at the Preamble of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act 2071 (2014) shows that the main objective of the Act is to investigate the truth and establish the facts about the persons involved in gross violation of human rights and crimes against humanity during the armed conflict and make such facts public, to create an environment of peace and reconciliation in the society, and to recommend reparations for the victims of such crimes and to bring those involved in serious crimes within the orbit of legal proceedings. However, numerous provisions of the Act are vague, unclear and do not include all the different classes of victims. In addition, they allow for immunity to the perpetrators of crimes of a serious nature such as enforced disappearance, custodial death, torture, rape and other serious violations of human rights. Previously, the Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission, 2069 (2013), which was certified by the President, was challenged by the writ petition, 069-WS-0057, filed by Advocate Madhab Basnet on behalf of Juri Nepal & Others and the writ petition, 069-WS-0058, filed by Suman Adhikari on behalf of the conflict victims & Others. The Supreme Court, in those writ petitions, declared the provisions of Sections 23, 25 and 29 of the Ordinance as unconstitutional while also nullifying the effects of some other provisions. In addition, the apex Court issued an order of Mandamus to the Government of Nepal to modify and amend the Ordinance in line with the standards of international law taking the assistance of an expert committee. As per the order, an expert committee had submitted its report to the Government of Nepal. However, the recommendation of the expert committee was not given any space in the Act.

Immunity from punishment cannot be granted through amnesty and forgiveness in serious crimes against humanity including enforced disappearance, custodial death, torture and rape. The provision of Section 26(2) of the Act reads as "Notwithstanding whatsoever mentioned in Sub- Section (1), the Commission shall not recommend amnesty for the perpetrators involved in rape and other crimes of serious nature in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty. "However, the phrase " in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty " used in the provision provides discretionary power to the Commission to recommend amnesty even for perpetrators of serious violations of human rights on the basis of having found sufficient grounds and reasons to do so. Similarly, the provision of Section 29(1) provides that "The Attorney General or a Public Prosecutor designated by him shall, after necessary investigation, decide on the matter whether a case can be prosecuted or not against any person, if the Ministry writes on the basis of the recommendation of the Commission to prosecute any person found guilty on allegation of serious human rights violations." Thus as the Ministry can act as a control on the recommendation of the Commission to prosecute, and the Attorney General will be able to decide on whether or not to file a case only if the Ministry writes to it, it restricts the power of the Attorney General guaranteed by Article 135 of the Constitution.

Section 13(2) of the Act provides that, "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission shall investigate the cases relating to the incidents occurred during the armed conflict in consultation with the concerned court or body where those cases are under consideration". A judicial body cannot be replaced by a non-judicial body. The provisions of Section 13(2), 13(3) and 13(4) of the Act tend to restrict and control the limits of judicial independence with regard to the principle that the powers relating to justice shall be exercised only by the Courts and other judicial bodies. Similarly, the provision made in Section 22(1) that "If a perpetrator or a victim files an application before the Commission for reconciliation, the Commission may cause to reconcile between the perpetrator and the victim" completely ignores the established jurisprudence and principle that reconciliation cannot take place in the absence of an independent and informed consent of the victim. As Section 22 allows for reconciliation to take place even without the consent of a victim and Section 25 provides that there shall be no recommendation for action on issues on which reconciliation has already taken place, these provisions tend to grant immunity to the perpetrators from criminal responsibility in the name of reconciliation.

Section 24 provides that "While carrying out investigation pursuant to this Act, if it is found that the property of any victim has been seized or confiscated, the Commission may cause to return such seized or confiscated property from the concerned person ". This provision makes only an individual accountable with regard to property seized or confiscated during the armed conflict. However, there needs to be a necessary amendment or judicial interpretation of this provision to ensure that the parties to the conflict, individuals, institutions and organizations involved in such seizure or confiscation of property are held accountable as well. Similarly, the provision of Section 10 provides that "A gazetted special class officer of the Judicial Service appointed or designated by the Nepal government shall work as the Secretary " and the provision of Section 11 reads as " The Ministry shall make available personnel required for the Commission. While making the personnel available, the Ministry shall have to consult with the Commission". Both these provisions curtail the independence of the Commission. Further, the provision of Section 12 providing that "The Ministry shall make arrangements for building, materials and other resources required for the functioning of the Commission" and the provision of Section 44 providing that "The Government of Nepal, in consultation with the Commission, may frame necessary Rules in order to implement this Act" do not ensure the independence of the Commission. Therefore, to ensure that the Commission is independent, impartial, competent and accountable, the powers to allocate resources, to ensure financial independence, to make necessary rules and to make available personnel should be inherent in the Commission.

Therefore, the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014) was promulgated in disregard of the Articles 12(1), 13(1) and 24(9) of the Interim Constitution of Nepal, 2063 and the orders of the Supreme Court issued in the writ petitions 069-WS-0057 filed by Advocate Madhab Basnet on behalf of Juri Nepal & Others and in 069-WS-0058 filed by Suman Adhikari & Others, and against the principles of transitional justice, and thus orders should be issued as per the claims of the writ petition.

Brief of the pleadings of the learned Joint Government Attorney Sanjeev Regmi and Kiran Prasad Paudel, appearing on behalf of the respondent Government of Nepal:-

The Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071(2014) was promulgated with the sacred objective of investigating the truth and establishing the facts about the persons involved in gross violation of human rights and crimes against humanity during the armed conflict and making such facts public to create an environment of peace and reconciliation in the society, to provide reparations to the victims and to ensure that the perpetrators of serious violation of human rights crimes are brought to justice. As per the Orders of the Supreme Court on 2070/09/18, the Act provides for the establishment of the Truth and Reconciliation Commission and the Commission of Investigation on Disappeared Persons as separate Commissions. Sub-Sections 13(2), 13(3) and 13(4) of the Act are not contrary to the Constitution as claimed by the writ petitioners. As the Commission can investigate the facts regarding the cases relating to the incidents which occurred during the conflict period prior to the establishment of the transitional justice mechanisms and are under consideration before any investigating body or Court or any other authority only in consultation with such concerned court or body, such a provision cannot seek to replace or interfere with the judicial mechanisms. The provision of Section 26 does not mean that the Commission can grant amnesty to individuals engaged in any kind of offence. The provisions contained in Sections 26(1) and 26(2) need to be examined together with the provision of Section 2(j) of the Act. The provision of Section 26(2) clearly provides that the perpetrators of crimes of serious nature will not be granted amnesty. Therefore, the provision is not contrary to the Constitution as claimed by the writ petitioners. The provisions of Sections 23(1) and 23(2) do not provide for the possibility of blanket amnesty to the individuals engaged in serious violation of human rights.

The provision of Section 22(1) neither creates undue pressure on the victims nor does it allow the Commission to declare that reconciliation has taken place even without the consent of the victims. As per the provision of Section 22(2), the Commission in course of the reconciliation process may ask the perpetrator to repent and seek an apology from the victim for the past misdeeds, which shows that reconciliation cannot take place unless the victim becomes satisfied. The claims of the writ petitioners that acting against the basic principles of human rights an independent and competent Commission would indulge in creating pressure on the victims for reconciliation or effect one-sided reconciliation is entirely imaginary and presumptuous. As the Commission is formed through a decision of the Government of Nepal, the provision of Section 29(1) requiring the Commission to present its report to the Government of Nepal is simply a managerial process. The provision makes it mandatory for the Peace and Reconstruction Ministry to communicate to the Attorney General about the recommendations of the Commission.

The provision of Section 24 regarding recommendation to the Government of Nepal about return of seized or confiscated property, the provision relating to appointment of the Secretary of the Commission in Section 10, the provision of Section 11 regarding providing personnel required for the Commission, the provision of Section 12 requiring the Ministry to arrange for budget, building, means and other resources required for the activities of the Commission and the provision of Section 44 about framing of necessary Rules by the Government of Nepal in consultation with the Commission are all simply a managerial arrangements made in consultation with the Commission by the Ministry on behalf of the Government of Nepal. The managerial arrangements made in consultation with the Commission cannot affect the independence, impartiality and competence of the Commission. Therefore, there is no scope of issuing the Orders as prayed for in the writ petition and as submitted in the oral arguments.

In the present writ petitions scheduled in the cause list and presented today before the Bench for pronouncement of the verdict, the submissions made by the learned Counsels appearing on behalf of the petitioners and the respondents and the learned Joint Government Attorneys have been listened to and the case files including the writ petitions and the written replies along with other documents attached therewith have been also studied.

Main Contentions of the Writ Petition:-

Besides containing numerous provisions that are vague and unclear, the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071(2014) also tends to provide for immunity to people involved in serious crimes against humanity including enforced disappearance, custodial death, torture and rape. Prior to this writ petition, with regard to the Investigation of Disappeared Persons, Truth and Reconciliation Commission Ordinance 2069(2013), which was issued by the President on the recommendation of the Government of Nepal, two writ petitions 069-WS-0057 and 069-WS-0058 were filed by Advocate Madhab Kumar Basnet, on behalf of Jury Nepal, & Others and petitioner Suman Adhikari, (on behalf of the conflict victims, & Others respectively. Through an order dated 2nd January, 2014, the Supreme Court, in the aforementioned writ petitions, held Sections 23, 25 and 29 of the Ordinance to be unconstitutional and observed that there can be no amnesty for offences of a serious nature and the participation and consent of victims will be a mandatory requirement of the amnesty process. In addition, the Court found that the criminal prosecution of individuals found to be guilty of serious violation of human rights, instead of being certain, easy and unobstructed, was subject to the discretion of the executive and made uncertain. And as this seemed to be tending to cause obstruction to justice, it was required to make those provisions in accord with the Constitution and the law. Further, the Court ruled that a short period of limitation in serious cases could lead to the possibility of impunity in cases regarding the violation of human rights, and thus such limitation period had to be amended and revised as per the Constitution and the established principles of justice.

The petitioners submit that the phrase contained in Section 26(2) of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071(2014)- " ....in which the Commission conducts the investigation and does not find sufficient reasons and grounds for amnesty" and the provision made in Section 13(2)- "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission shall investigate the cases relating to the incidents occurred during the armed conflict in consultation with the concerned court or body where those cases are under consideration", " and the provision made in Section 13(4) which reads as " In case of a dispute concerning whether or not any incident took place during the armed conflict, the Commission shall decide on that matter ", being incongruous with the Interim Constitution, 2007 ought to be declared invalid and null and void. Staying within the perimeter of judicial independence and the victims' effective legal remedy, the petitioners further prayed for the issuance of an appropriate order to the respondents to amend the Act so as to redefine and manage the relationship between the Commission and the judiciary.

To ensure the legal guarantee that no process of reconciliation can take place without the informed consent of the victims, and to establish that the consent of the victims as a mandatory legal requirement for amnesty referral gets legal validity, to make provisions for empowering the Commission to recommend directly for prosecution to the Attorney General and to make certain that an accused does not get immunity from criminal liability on the basis of any departmental action and to make organizations accountable as well to ensure the return of captured property, this writ petition prays for the issuance of a writ of mandamus and other appropriate orders against the respondents for making appropriate amendments to Sections 22(1), 24, 25(3),(4), 26(5) and 29(1) of the disputed Act in view of the jurisprudence established in the previous rulings of the apex Court. Until and unless human rights violations including custodial deaths, rape, disappearance, torture, genocide, war crimes, crimes against humanity, forced displacement etc. are criminalized and punishment for the guilty ensured, based on international law and standards, transitional justice cannot be guaranteed; therefore, this writ petition prays for a writ of mandamus directing the speedy creation of the required law in this regard including for the implementation of the previous rulings by the Court on this issue.

As per the constitutional duty outlined in Article 135(3)(b) of the Interim Constitution of Nepal, and in the context of guaranteeing transitional justice with regard to the proper implementation of orders issued and legal principles laid down by the Supreme Court, this writ petition also prays for a writ of mandamus to be issued in the name of the respondent Attorney General to prepare a necessary work plan to ensure effective monitoring of such orders and legal principles and to submit periodic reports to the Supreme Court on the status of such implementation.

Main Contents of the Written Replies submitted by the Respondents:-

Sub-Sections 13(2) and 13(4) of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, 2071(2014) are not in conflict with the Constitution. The incidents related to human rights violations committed during the period of armed conflict being of a different nature and complexity, the issues related to such incidents require special mode of investigation to find out the truth for which the establishment of transitional judicial mechanisms is an international practice, and the same has been accepted by the Constitution as well. With regard to cases concerning such incidents occurred before the establishment of the transitional judicial mechanisms, which are under consideration before various State mechanisms either in course of investigation or in any other way, the Commission shall conduct investigation in consultation with the concerned court or body, and such a system cannot be said to be replacing the existing system and mechanisms, nor can it be held to be interfering with the independence or capability of such institutions.

The definition provided in Section 2(j) of the Act sufficiently covers all the subjects related to serious violations of human rights. This definition has completely internalized international principles and values. The provisions of Section 26(1) and 26(2) need to be read together with the provisions of Section 2(10). To read SubSections 26(1) and 26(2) of the Act as providing for blanket amnesty to individuals involved in incidents of serious violation of human rights would be contrary to the overall objective and structure of the Act, and hence such an interpretation cannot be made. Section 26(4) requires that in a petition submitted pursuant to Section 26(3) in regard to the incidents related to serious violations of human rights, the perpetrator will be required to confess to have committed serious violation of human rights in the course of armed conflict and felt repentance for such wrong act and to agree to offer an apology to the victim before the Commission in a satisfactory manner and commit not to repeat such acts in future, and until the perpetrator confesses to have committed serious violation of human rights and apologizes to the victim in that regard, no Section of the Act provides the Commission with the authority to grant amnesty to the perpetrator.

Section 22 of the Act does not provide for the Commission to make one- sided reconciliation between the perpetrator and the victim by in the absence of the consent of the victim. The claim of the writ petitioner that an independent and competent Commission would go against the basic principles of human rights by creating pressure on the victims for reconciliation or conduct one-sided reconciliation is not based on reality rather imaginary by nature. Section 29 (1) of the Act provides that while presenting its report to the Government of Nepal, including findings of the investigations conducted by the Commission, the Commission shall write to the Attorney General through the Peace and Reconstruction Ministry to implement the recommendations of the report. As no provision of the Act grants any discretionary power to the Ministry to create any hindrance in such process, there is no basis or reason for invalidating Section 29(1) as per the claim of the writ petitioner. Therefore, the present writ petition must be quashed.

After considering the aforementioned oral arguments and studying the case file including the writ petition, respondents' written submission and written pleading notes, the decision has to be made primarily focusing on the following issues with regard to the writ petition presented before this Court:-

1. What are the provisions of the international human rights law, humanitarian law, the Interim Constitution of Nepal, Comprehensive Peace Agreement and the jurisprudence developed by this Court in relation to transitional justice standards?

2. Whether the provision in question of the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014)have been able to recognize the aforementioned jurisprudential values and norms or not and whether they are in line with Article 12, 13, 24 of the Interim Constitution of Nepal, the principles established by this Court, and the constitutional law of Nepal or not ?

3. Whether orders should be granted as per the claims of the writ petition?

Before considering the aforementioned questions formulated to reach a decision, it is desirable to have a brief overview of the subject matter and its background, with regards to the claims of the writ petition.

The petitioners have mainly claimed that Sections 3,13,22,24,25,26 and 29 included of the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014), that had been passed by parliament and is currently in force, are not compatible to, and violate the Interim Constitution of Nepal, 2007 and Comprehensive Peace Agreement, 2006, the international human rights laws and humanitarian laws ratified by Nepal, and the various orders including writs of certiorari, mandamus and directive orders of the Supreme Court issued in various previous writ petitions, including against the Government of Nepal. The petitioners claim that the preamble and various provisions enshrined in the Act not only provide for escape routes in the guise of reconciliation and amnesty, but also limit the fundamental right of the victims to get justice, constricts and interferes with the constitutionally provided jurisdiction of the judiciary, challenges the constitutional right of the Attorney General to prosecute, instead of providing for an objective establishment of the truth and bringing those guilty of serious human rights violations to justice as per an obligation of the State. The petitioners, therefore claim for a writ of mandamus and directive orders to declare the impugned provisions contrary to the Constitution and thereby repealing those provisions and for such provisions to be amended in conformity with the universal norms and values of human rights.

The respondents submitted that the there is no ground for writ to be issued as per the claim of the petitioners. In their submissions, including the written reply of the Government of Nepal and the Constituent Assembly, which promulgated the law in its capacity of Legislative Parliament, contained apart from other things, that the particular Act was adopted in order to achieve long lasting peace by managing the past conflict through reconciliation and building harmony in the society. The constitution, comprehensive peace agreement, international human rights laws and humanitarian laws and including the orders of this Court had been taken into account while formulating this law.

Now the first question needs to be considered in the context of the petitioners' claim and respondents' submission. In that regard it is imperative to pay our attention to some of the issues mainly: what kind of post conflict system should be in place to deal with serious human rights abuses committed during the conflict such as judicial, quasi judicial and social system, ,how can a balanced jurisprudential basis be built in relation to the various approaches of transitional justice, how can the perpetrators be held responsible and accountable in both judicial and social level for the crime they committed and thereby healing the wounds of the victims through a legally justifiable solution.

In fact human rights are those fundamental interests, desires and requirements of humans that have allowed humans to be separate from other creatures. Human beings, as natural persons have inalienable rights and liberties that cannot be deprived. No one is allowed to enter, encroach or breach the boundaries of such rights whether it is the State, or any so called organization or individual. And these rights, which are also related to humanity are non derogable and remain protected even during times of emergency or war.

However the bitter reality of humanity having suffered through war or armed conflict, for one reason or another, in different eras cannot be forgotten. In many situations, armed conflict is sought to be received or explained through the angle of necessity. In eastern philosophy, there are examples of fearful armed conflict even during the Satya, Dwapar and Treta era. The examples of the conflict between Sur and Asur, God and Demon, Truth and Untruth, Dharma and Adharma and the victory of God or truth in such conflicts is not unknown to us. The epics of the Hindu religion such as the Ramayana, Mahabharata and the Geeta have been created based on incidents of conflict. Surprisingly, the armed conflicts said to have happened during those times were not arbitrary but based on the rules of war. The rules of a holy war such as the restriction on the fighting time to between sunrise and sunset, the blowing of conch before any attack to warn the opposite side, the prohibitions on any attacks from behind, deceitful attack and the principles of not attack any women and children, while providing sanctuary to the wounded and surrendered fighters instead of killing them is friendly to both human rights and humanity. In addition there are multiple examples from those times, wherein in a post conflict setting, individuals guilty of violating the rules of war would be punished and rebuilding, development and social co-existence and reconciliation take place.

Even the history of modern human development has travelled through the roads of armed conflict. Not only Asia or Africa, even those thought to be the identifiers of modern civilization such as Europe and the Americas, seem to have developed their civilization on a base of conflicts. From this viewpoint, one should also keep in mind that the current political boundaries of states through out the world, in one way or the other, have been built through the effect and influence of conflict.

Ultimately defeated by the pain of war and becoming aware through the common knowledge of their own heartbeats, the efforts to stop conflicts or making the consequences of conflict or its pain less risky had started more than a century ago. There were numerous such attempts in Europe before the First World War. Even though the League of Nations was established as an attempt to the end of war, it could not prevent human community from the pain and horrors of genocide of the Second World War, the negative effects of which still points fingers towards human civilization. The end of the Second World War and the need to prevent the possibility of a third World War led to the establishment of the United Nations. It is commonly known that along with the establishment of the United Nations, international efforts on conflict prevention and management started taking concrete shape. It is neither possible nor necessary to reiterate those efforts. The only need is to recollect. Even though, seven decades after the establishment of the United Nations, the dangers of a Third World War are at bay but there continues to be bilateral, trilateral conflicts for whatsoever reasons between States or internal conflicts within States between groups, communities or between such groups and the State.

Learning the lessons from history, it has become an universal value that irrespective of the aim or purpose of the conflict, it cannot be used to justify the violation of human rights and human compassion. Therefore national and international laws continue to monitor, regulate and apply in incidents of internal as well as external armed conflicts. Apart from national laws, the incidents of serious violations of human rights under international human rights law and humanitarian law are punishable and unpardonable. No immunity is available for from offences. The serious violation of human rights during an armed conflict is not only a country specific concern but falls inherently as the common interest of the entire world, which means that it is an indivisible and integral agenda of globalization. Therefore any attempts to either not to bring these issues under the jurisdiction of the justice system or to downplay such issues even when within the boundaries of national jurisdiction are no more legitimate.

International human rights law and international humanitarian law are the two branches of international law applicable to armed conflict. These two branches, rather than competing, complement each other. Human rights law is applicable at times of both conflict and peace whereas humanitarian law is applicable only at times of war. However, the aim of both remains the protection and preservation of human dignity. The complete structure of these two legal systems is developed through the international treaties ratified by State parties and customary international law. Primarily, international human rights law seems to impose obligations on State parties, whereas humanitarian law is applicable equally to all parties to a conflict. These laws primarily define crime against humanity, genocide, racial killing, enforced disappearances, human trafficking, rape, cruel and inhuman treatment, torture and illegal killings as incidents of serious violation of human rights.

The written sources of international humanitarian law are the Geneva Convention, 1949 and its optional Conventions. Among these, Nepal has ratified four of the conventions on 2020/10/24 (1964/02/07) and thus their provisions are automatically applicable to conflicts of the past. Similarly, international humanitarian law of a customary nature continue to be applicable in the same manner.

As Nepal had already ratified, prior to the period of armed conflict, the conventions which are part of international human rights law, such as International Convention on the Elimination of all Forms of Racial Discrimination, International Covenant on Civil and Political Rights, 1966 including its First and Second Optional Protocols, International Covenant on Economic, Social and Cultural Rights, 1966, Convention on the Elimination of All Forms of Discrimination against Women, 1979 and its Optional Protocol, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Convention on the Rights of the Child, 1989 and its two Optional Protocols; any attempt at conflict management by disregarding these conventions cannot be acceptable to the international community. It should be recalled that Section 9 of the Nepal Treaty Act, 1990 allows for Nepalese laws inconsistent with such treaty provisions shall be void, with the treaty provisions being enforceable.

While discussing human rights, an indispensable issue is that the right to dignified life occupies higher stratum than other rights. For instance, even when there is a crisis or disaster, a citizens' right to life cannot be derogated or limited. Article 4 (2) of the International Covenant on Civil and Political Rights which has been ratified by Nepal provides the rights under Articles 6,7,8 (Sub Sections 1 and 2), 11,15,16 and 18 to be non derogable rights, which cannot be taken away even in the period of state of emergency.

Right to Life - Article 6
Prevention from torture, cruel, inhuman or degrading treatment or punishment - Article 7
Prevention of Slavery, slave trade and servitude - Article 8 (1) and (2)
No imprisonment merely on the ground of inability to fulfill a contractual obligation - Article 11
No retrospective application of criminal law - Article 15
Right to recognition as a person before the law - Article 16
Right to freedom of thought, conscience and religion - Article 18

Similarly, as per the proviso of Article 143 (7), Interim Constitution of Nepal 2007, the following fundamental rights shall not be suspended even during a period of state of emergency:-

Right to Life, Personal Liberty, and the freedom to form political parties and to form unions or associations - Article 12 (1) (2) and (3) (c) and (d)
Right to Equality - Article 13
Right against Untouchability and Racial Discrimination - Article 14
No electronic or print media to be closed, seized or punished with cancellation of registration for printing or publishing any news - Article 15 (3), (4)
Right relating to environment and health - Article 16
Right relating to education and culture - Article 17
Right to social security and employment - Article 18
Rights of Women- Article 20
Right to Social Justice - Article 21
Rights of the Child - Article 22
Right to Religion - Article 23
Right relating to Justice - Article 24
Right against Torture - Article 26
Right against Exploitation - Article 29
Right relating to Labor - Article 30
Right against Exile - Article 31
If the aforementioned rights and freedoms are encroached upon, then the right to constitutional remedies and the right to a remedy of habeas corpus - Article 32

From a comparative study, most of the human rights that have been classified as non derogable rights as set out by Article 4 (2) of the International Covenant on Civil and Political Rights, 1966, find their place as inalienable fundamental rights through the proviso of Article 143 (7) of the current Interim Constitution. In addition to the rights that cannot be suspended as per the International Covenant on Civil and Political Rights, 1966, the Interim Constitution of Nepal has put the right to equality, right against untouchability, media and newspapers, environment and health, education and culture, social justice, women, children, religion, justice, against torture, related to labour, right against exile as rights that cannot be suspended. These requirements of the Interim Constitution is wider and liberal than the requirements of the international covenant ratified by Nepal.

Transitional justice is a process or mechanism closely related to the society. In this process the victim and the perpetrator face each other. There are mainly two dimensions to this. Firstly, to punish the perpetrators guilty of crimes of a serious nature and second to create an environment for reconciliation. The perpetrator is held responsible and answerable to law and society through these two processes. To find out which subjects to go to the legal system and which one to go for reconciliation is the goal of transitional justice that needs to be implemented in a proper manner. To allow perpetrators of serious offences to escape through the guise of reconciliation or to prosecute even for offences committed without intention and crime of less serious nature, in either case transitional justice will not be successful. Transitional justice has the following four steps:

i. To investigate and make public the truth regarding incidents of the past (Truth Seeking).

ii. To prosecute those involved in crimes of a serious nature to uphold justice (Justice).

iii. To ensure reparation to the victims (Reparation).

iv. To guarantee that such incidents do not repeat themselves in the future (Non-recurrence).

Further, this Court has in various writ petitions issued orders including against the Government of Nepal that the perpetrators of serious violations of human rights during the period of conflict, such as enforced disappearances, murder, rape etc, have to be brought to the justice and the perpetrators cannot simply be provided immunity by the State.

1. Rabindra Prasad Dhakal on behalf of Rajendra Prasad Dhakal v. Ministry of Home Affairs, the Government of Nepal and Others

This writ petition primarily demands for the search and release of citizens detained unlawfully and subsequently disappeared during the period of conflict. In this writ petition, the division bench of this Court examined the questions such as the status of the persons allegedly arrested and disappeared by the security forces, the state obligation in relation to the citizens subjected to enforced disappearance during conflict and their fate and whereabouts is unknown, the potential judicial remedies that could fulfill such obligations and the role of the Court in this regard, the measures that have been taken till date so as to investigate and make public the fate of disappeared persons, whether such efforts were adequate and effective enough or not, what measures should be taken to address this, what legal framework is in place, to determine the whereabouts of disappeared persons, bring perpetrators to justice, and provide remedy including compensation to victims, whether such legal provisions are adequate and effective enough or not, and if they are not ,what legal reforms and initiatives are necessary, whether any interim measures are necessary in order to render immediate relief, mitigate the suffering of families of disappeared persons, and facilitate inquiries into the status of disappeared persons, and if such measures are necessary whether such orders can be issued with respect to the current petitions.

The Court considered those question and held that an act of enforced disappearances violates the constitution of Nepal, international human rights law, international humanitarian law and the International Convention for the Protection of all Person from Enforced Disappearance, 2006. It further held that perpetrators of serious violations of human rights could not be provided immunity without being brought to justice and made the following order:

It has been found that current legislation is insufficient to address incidents of disappearance occurring during the time of conflict or at other times including, disappearance-related matters such as arrest, detention, hostage taking, and other ill-treatment that occurred during detention; the rights of victims and their families and remedies available to them; and the effective investigation into related matters. Though there is an Act governing inquiries into matters of public importance, this Act was not formulated for the purpose of conducting an inquiry into disappearances and related matters. Therefore, in the absence of appropriate legislation, a real, effective and practical investigation does not seem possible. Further, under existing criminal legislation, there are no provisions addressing the legal and structural questions relating to this matter.

Therefore, for the purpose of addressing this problem in an effective manner, it is necessary to create legislation defining the act of disappearance as an offence; providing a definition of the act of disappearance consistent with the definition provided in the International Convention for the Protection of All Persons from Enforced Disappearance 2006; incorporating provisions addressing the rights of detainees and obligations toward those who are kept in detention; designation of detention centre; ensuring access of legal counsel and relatives to detainees, and the right of the detainees to be informed about the reasons of their detention; ensuring judicial remedy for detainees, including compensation for detainees who are kept in illegal detention, or concerned persons and family members who have become victims of illegal detention or enforced disappearance; establishing a statute of limitations that does not adversely affect the investigation process; designating a complaint hearing body that can determine liability for acts of illegal detention or disappearance; ensuring that detainees are held only in official detention facilities, and that sufficient facilities are available; guaranteeing the humane treatment of detainees; making information available to detainees including details such as the duration and terms of their detention, the name, title, address and other relevant details of the person who is responsible for issuing their detention order, and other relevant information, including detainee transfers; guaranteeing that the detainee's families has detailed information about the conditions of detention by introducing convenient procedure for this purpose; ensuring that the terms and conditions of release are such that the person who is released from detention will understand that he or she has been released in a true sense, and that his or her mental and physical condition at the time of release is recorded. During a time when a trial for an act of disappearance is ongoing, it is equally important that international standards including the provision that no pardon can be granted in favour of a person upon whom punishment has already been imposed, are observed. For this purpose, it would be prudent to adopt the International Convention for the Protection of all Persons from Enforced Disappearance as a guideline.

For the purpose of implementing the above-mentioned legislation, to be formulated for the protection of persons subjected to enforced disappearance, it is recommended that provisions be made, within the same legislation or separately, that an inquiry commission to investigate allegations of enforced disappearance be constituted. Given that special skills and procedures are required to investigate problems of this kind, it seems appropriate to adopt the terms and conditions appearing in the Criteria for Commission on Enforced Disappearance, a set of guidelines which has been developed by the OHCHR.

Legislative provisions establishing a Commission should include: a requirement that all incidents relating to this issue be investigated; a well-defined jurisdiction of the Commission; a requirement that inquiries do not displace the jurisdiction of the court system; a requirement that persons nominated to sit on such a Commission are competent and have appropriate expertise and are capable of acting with independence and impartiality; a requirement that the Commission operates under adequate terms and conditions, and has sufficient facilities; a requirement that women, ethnic groups or other communities are represented; a requirement that powers, duties and functions of the Commission are stipulated in the legislation itself; that an investigation be initiated based on information received from any source in accordance with the nature of the problem; a requirement that the investigation shall continue until the facts of the incident have been established; a requirement that the security of victims, witness, plaintiff, counsel and investigators be safeguarded and their continuous cooperation with the investigation is assured; a requirement that arrangements are made to guarantee the rights of victims, including ensuring that they have the opportunity to record their statements and raise their concerns, but keeping their statements confidential if so required; and a requirement that the Commission be able to exercise adequate powers including to inspect necessary places, including offices, and make inquiries of any persons whom they deem necessary. It is also necessary to ensure that the Commission has the means and resource necessary to accomplish its tasks. All of these matters should be taken into considering in enacting the legislation.

If these matter are given due attention during the process of creating legislation pursuant to the legislative power entrusted by the sovereign Nepali people, persons who are affected by this problem should benefit to some extent.

A directive order is hereby issued directing Respondents Ministry of Home Affairs, the Government of Nepal and the Office of the Attorney General to enact legislation to protect persons who are subjected to enforced disappearance; to include in this legislation, a provision about establishing an inquiry Commission; and, so as to ensure that a comprehensive investigation into enforced disappearance takes place and the status of disappeared persons is established, to establish a powerful Commission to conduct an in-depth inquiry and produce a report regarding the cases of the persons mentioned in these petitions; and, based on that report, to conduct criminal investigations as needed, including making a decision to file charge sheets against the responsible persons.

In addition to the distress experienced by the concerned persons due to the fact that they were subjected to disappearance, their families have continued to suffer from socio-economic damage and mental trauma due to the disappearance of their family members. One can see the far reaching social and economic consequences that will surface in due course when one reflects upon the time, labour and expenditure spent in search of disappeared family members, and the psychological and economic impacts of their absence. The State has failed to make public the status of the persons so disappeared while the families continue to suffer various damages, liabilities, and pain and suffering, and will continue to suffer until the status of the disappeared persons is conclusively known. Hence, it seems imperative that this problem be addressed at any cost.

The violation of the right to liberty and security of life cannot be compensated in monetary and financial terms. However, this Court solemnly finds that the State has a responsibility to provide a minimum amount of assistance to the victims. Because rights have no meaning in the absence of an effective remedy, it is necessary to provide immediate interim relief, if for no other reason than to show respect for the victims' families right to seek a remedy.

In this context, pursuant to Articles 100 and 107(2) of the Interim Constitution 2007, an order is hereby issued directing the Government of Nepal as well as the Cabinet Secretariat to provide immediate relief of two hundred thousand rupees to the next of kin of the late Chakra Bahadur Katuwal whose death has been verified by the investigation of the DITF; two hundred thousand rupees each to the families of those who have been declared dead; one hundred fifty thousand rupees each to the families of Rajendra Prasad Dhakal, Bipin Bhandari and Dil Bahadur Rai, who, according to the DITF investigation, were arrested by the security forces and subjected to enforced disappearance; and one hundred thousand rupees each to the families of the other persons mentioned in the petitions whose fates have not been established.

In addition, a directive order is hereby issued directing the Government of Nepal to formulate an appropriate relief programme, including employment, financial and educational assistance, and to implement it without causing any adverse effects, in accordance with the various paragraphs above, taking into consideration the suffering and difficulties borne by the families due to their continued uncertainty about the fate of the victims.

2. Liladhar Bhandari and Others v The Government of Nepal and Others

In the present writ petition, the petitioners were displaced after their moveable and immovable properties including houses, land and industries were confiscated by the respondent party and its sister organisations during the period of conflict, rendering the petitioners homeless and without professions as well as being internally displaced. The commitment by the signatories of the Peace Agreement to return such property is mentioned in the Interim Constitution of Nepal, 2007 as well, but despite the petitioners petitioning the political parties, the National Human Rights Commission and the Government of Nepal to return such properties, no initiative was taken in this regard. The petitioners allege that they have been reduced to the status of non-citizens and were leading a displaced life. The writ petition prayed for an order of mandamus directing the return of confiscated property as well as providing appropriate compensation. In this writ petition, a division Bench of this Court interpreting and analysing transitional justice measures, made the following orders:-

In transitional justice, the idea of providing strategic remedy is adopted through general evaluation of the incidents that happened during the conflict period, therefore, consideration should be given to various aspects including investigation and prosecution of crime, truth seeking, reparation, institutional reforms, vetting, etc.
The main objectives of transitional justice are: to prevent the serious crimes under humanitarian laws and human rights law during the conflict; to guarantee the non-reoccurrence; to generate a feeling of self-dignity and security in victims; to keep a true record of the incidents; to create an environment for national reconciliation and to restore the rule of law; and finally, to contribute to the peace building process.
Indisputable properties belonging to the petitioners are the properties to which they are entitled to possess, dispose and transfer as per law. It is the primary duty of a State to protect such properties.
Whatever may be the cause of the conflict, the body, life and properties of an individual are inalienable rights. The excuse that the conflict was aggravated to its extreme point cannot justify the act of violating the personal or property rights of a person. No matter whether it was inflicted during the course of the conflict, each single act that violates legally guaranteed rights is deemed illegal.
As the Comprehensive Peace Agreement expresses commitments for the enjoyment and implementation of the rights provided by the Constitution, it allows this Court to contextually draw the attention of the State to the norms and values of the CPA, for the purpose of giving effect of these rights.
As the right to property has been recognized as a fundamental right under the Constitution, any political or other endeavor legitimizing unlawful occupation or a confiscation of property, except as provided by law, shall not be acceptable.
The fundamental rights including the right to property, rule of law and accountable Government have been recognized as the basic structure of the Constitution. Any act of restricting the rightful owner from enjoying the property and transferring its title is tantamount to striking at the very foundation of the constitutional regime. If such ideas or practices that are against the constitution are allowed to exist, it would be meaningless to make any Constitution and to include therein provisions regarding the rule of law, an independent judiciary, fundamental rights, etc.
If violation of the right to property or to individual liberty continues to take place at a large scale or at a community level, it shall be the obligation of the State to make necessary interventions by enforcing law so as to normalize the situation.
It seems necessary to draw the attention of the Government of Nepal to take specific program or transitional justice measures to address the violation human rights including confiscated properties during the conflict.
In order to determine the loss it deems necessary to access it on the basis of income earned by the use of the property, verify the possession and registration of particular properties, as the petitioners have claimed the return of property along with compensation thereof.
For that purpose, an order of mandamus is issued pursuant to Article 107 (2) of the Interim Constitution of Nepal, against the respondents including the Office of Prime Minister and Council of Ministers, to set up a district-level property return committee comprising five members including representatives of victim community,, a representative from law enforcement agency, and a representative of political parties in districts having problems similar to that of the petitioners; through that committee, by adhering to the abovementioned procedures, to assess loss, damage or depreciation, also assess the losses, in the case of confiscated properties that are income generating in nature, from the date of confiscation to present; to return, cause to return, the properties to rightful owners as per the claim of the petitioners through the said committee within three months from the date of receipt of this order; and to set up a fund to provide relief to those who became victims from the damage owing to the confiscated of properties.

3. Madhab Basnet and Others v Office of the Prime Minister and Council of Ministers and Others

This writ petition, among other things, similarly to the present writ petition, challenges Sections 13, 23, 25 and 29 of the then existing Ordinance on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2069 (2013), as being contrary to Articles 12 (1), 13 (1) and 24 (9), the petitioners have requested to invalidate those sections by an order of certiorari pursuant to Article 107 (1) and (2) of the Interim Constitution of Nepal, 2007 and an order of mandamus be issued to amend the law.

With regards to the incidents of serious violations of human rights during the period of conflict, the Court examined the following questions; whether there should be separate commissions for the investigation of enforced disappearance and truth and reconciliation or whether a single Commission can work on both issues, whether as per Section 23 of the Ordinance, the Commission can provide amnesty to the perpetrator without the consent of the victim, whether the provisions of Section 25 provide for immunity to those involved in crimes of a serious nature, whether the provision of Section 29 restrict the powers of the Attorney General with regards to prosecution, whether the limitation of 35 days to initiate prosecution once the decision to file a case has been made is against the universal principle of absence of limitation in criminal cases of a serious nature, and on the basis of the Interim Constitution of Nepal, Comprehensive Peace Agreement, international human rights law and humanitarian law as well as the accepted principles and practice of transitional justice, the Court, with extensive analysis, made the following orders:

The present Ordinance is in contravention to the approach of the international human rights law which regards enforced disappearances as serious crimes related to human rights. It is also against the decision and order issued by this Court on the case of Rajendra Dhakal, and against the spirit of the Interim Constitution of Nepal, 2007, and the right to life and liberty of individuals as recognized by the previous Constitutions. A separate Commission had to be formed to implement the decision of the case of Rajendra Dhakal, which has not been complied with. Besides, while the Disappearance Commission was deemed to be purely related to criminal acts of enforced disappearances, it has not been provided for accordingly in the Ordinance. And acts of enforced disappearances should not be made the matters of reconciliation, whereas, in the present Ordinance, acts of enforced disappearances have been made matters of reconciliation and made part of the Truth and Reconciliation Commission. As this is against law, and as the provisions related to the act of enforced disappearances in the present Ordinance are in contravention to the Constitution, law and the principles of judicial precedents as set by this Court, an order of certiorari is hereby issued in the name of the respondents; and because the said provisions are unacceptable, they should be removed from the Ordinance and that the Ordinance should not be implemented or cause to be implemented in its present form.

As stated above, an order of mandamus is hereby issued to the Government of Nepal to issue, without delay, another Ordinance with necessary legal provisions to establish a separate Inquiry Commission, or to make necessary arrangement for the same, for the investigation of enforced disappearances, in line with Constitution, laws and the decision of this Court in the case of Rajendra Dhakal and other legal precedents set by this Court.

Among other provisions of the Ordinance, the main constitutional and judicial issues are found as stated as follows; and as the provisions of the Ordinance in the present form are not found to be in line with the principles of constitution and justice, and as it requires to be done as mentioned hereunder, the order of mandamus is hereby issued to the Government of Nepal, to do as mentioned hereunder and issue the Ordinance only after its amendment or reform or to make any other necessary legal arrangement for its implementation:-

a) Since the provision of Section 23 of the Ordinance concerning amnesty does not assure non-recommendation for amnesty even in case of the offences referred to in Section 2 (j) and it has made them a matter of amnesty procedures and since this has made the involvement and consent of victim in the amnesty proceedings not mandatory but only secondary requirement and this seems to be against the victims' fundamental right to justice including right to life and liberty, right to information, right against torture, and this provision is found to be against the recognized principles of justice. Therefore, this provision has to be reviewed, reformed and amended accordingly;

b) Since the provisions of Sections 25 and 29 of the Ordinance do not ensure that the perpetrators of serious violation of human rights is brought to the justice, rather it has been subjected to the discretion of the executive and uncertain and thereby obstructing the process of justice, the said provisions have to be made consistent with the Constitution and laws;

c) The statute limitation of thirty five days has been prescribed to file cases after the recommendation of the Commission or after the Attorney General's decision to file cases on the recommendation of the Ministry. It does not specify the responsibility as to what happens if a case is not filed within the said statute of limitation, and since such a short period of statute of limitation in serious violation of human rights may lead to impunity, therefore, the said provisions are also inconsistent with the Constitution and against the accepted principles of justice recognized by the Constitution, therefore, they have to be reviewed and amended accordingly;

d) In addition to aforementioned provisions, an order is hereby issued to reforms law and adopt necessary measures to criminalize serious human rights violations; to initiate extensive campaigns to promote the spirit of reconciliation; to provide for reparation to the victims and their families with enough economic, legal and institutional arrangement; and to ensure the autonomy and impartiality of the Truth and Reconciliation Commission by forming such a Commission constituting only of individuals who, during conflict, were not parties to that conflict or were not involved, in any way, either to repress that conflict or were part of the administration thus being party to the conflict, or who do not have any negative records of human rights violations, and also in line with the internationally accepted standards; to make and implement victim and witness protection program for them to be able to tell their truth, to be able to effectively defend it, and to protect their individual identity related details; to arrange for, if needed, in-camera hearing or distance hearing by arranging various means including of audio-visual technique.

e) In order to prescribe in law itself the fundamental provisions to be adopted by the Commission on issues including amnesty, amend the Ordinance by taking assistance from an expert team constituting conflict experts, organizations representing victims or victims' interest, human rights law experts, and other stakeholders on these matters.

This Court has issued mandatory order on the basis of the Interim Constitution of Nepal, Comprehensive Peace Agreement, international human rights law and humanitarian law and comparative practices of jurisprudence developed by the various United Nations Committees and international courts and tribunals supported by the United Nations, regional human rights laws and the regional human rights courts supported by it, as well as the interpretation by the highest courts of different countries, with regards to the long term management of transition providing for an analysis of the defects in the policy and managerial aspects of State policy, furnishing provisions of clarification through interpretation, issuing of relevant guidelines with regards to improvements, repeal of certain provisions and the issuance of orders to create or amend laws with regards to the creation of two different Commissions: for the investigation of enforced disappearances, and for truth and reconciliation through separate laws, the clarity regarding the formation, independence, autonomy, impartiality, jurisdiction and procedural aspects of the Commissions, a reconciliation process based on the voluntary and informed consent of the victims, guarantee of prosecution against those guilty of serious violation of human rights and the respect of victims and reparation to them.

From a comparative analysis, it is clear that the main points of the aforementioned orders of this Court by themselves are the guidelines and the jurisprudential basis for transitional justice in Nepal, and there is no reason to have any doubts or confusions about it.

Now we come to the analysis of the second question as to whether the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014)and its provisions which has been challenged by the petitioners, is compatible to the aforementioned jurisprudential values and norms or not?

The petitioners claim that despite multiple orders of this Court with regards to the aforementioned issues, the respondents having disregarded that during the promulgation of the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014), particularly the provisions of Section 13 (2) which reads as "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission in consultation with concerned court or body concerning the cases under consideration shall investigate the cases relating to the incidents occurred during the armed conflict" and Section 13 (4) which reads as " In case of a dispute concerning whether or not any incident took place during the armed conflict, the Commission shall decide on that matter " and Section 26 (2) which reads as "... in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty" being contrary to the Constitution ought to be declared unconstitutional.

In addition to that, the petitioners have challenged the Sections 22 (1), 24, 25 (3) (4), 26 (5) and 29 (1) of the disputed Act, to ensure the legal guarantee that no process of reconciliation can take place without the informed consent of the victim, and to establish that the consent of the victim as a mandatory legal requirement for amnesty measures, to make provisions for the Commission to be able to directly recommend for prosecution to the Attorney General and to make certain that the accused does not get immunity from criminal responsibility on the basis of any departmental action and to make organisations accountable as well to ensure the return of captured property.

Stating that the objective of the transitional justice cannot be fulfilled until and unless human rights violations including custodial deaths, rape, disappearances, torture, genocide, war crimes, crimes against humanity, forced displacement etc are not criminalised and punishment for the guilty is ensured, based on international law and standards, the requirement of an Order by this Court for the implementation of previous orders has also been raised.

With regards to then existing Ordinance on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2069 (2013),it provided for the creation of a Commission on Investigation of Disappeared Persons and a Truth and Reconciliation Commission under the same law and the provisions regarding reconciliation, amnesty, recommendation for punishment and prosecution were controversial.

With regards to the current Act, there seems to be no difference with both the Commissions being formed under the same Act. Similarly, with regards to the provisions regarding reconciliation, amnesty, recommendation for punishment and prosecution, there is similarity both in structure and essence. The fact that a law on enforced disappearance is yet to be made showcases the confusion as to how to ensure implementation of the recommendations made by the Commission with regards to cases of enforced disappearances.

Primarily, in the context of the order of this Court in the case of Madhab Kumar Basnet on 2070/09/18 (2014/01/02), the Government of Nepal created a Working Committee which comprised of victims as well as specialists to create two different drafts for the formation of the Commission on Enforced Disappearances and the Truth and Reconciliation Commission. The Committee after extensive consultation with the stakeholders, and in light of international standards, in its report submitted on 2070/12/13 (2014/03/27) recommended the drafting of separate laws for the setting up of the Truth and Reconciliation Commission and the Commission on the Investigation of Disappeared Persons and the need to make enforced disappearances a crime and to create laws making it punishable. In addition, the Committee seems to have submitted a proposed draft of all the three laws to the Government of Nepal.

However, despite the orders of this Court and contrary to the report of the Committee formed by the Government of Nepal, with regards to the Commission on Investigation of Enforced Disappearances and Truth and Reconciliation Commission without any attempts to create two separate laws, and acting as if there was no order from this Court, the respondent Government of Nepal presented the combined Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014), which was subsequently passed by the legislative parliament and came into force from 2071/02/18 (2014/06/01). Not only that, despite the separate draft presented by the Committee on making enforced disappearances a crime; this serious violation of human rights which cannot be provided amnesty, was made a crime as part of the Criminal Code Bill, which though presented in parliament did not become an Act.

This Court in prior decisions regarding the Ordinance of a similar nature had clarified on issues such as the inter relationship between the Courts and the Commission, the limits of reconciliation, amnesty and the provisions regarding prosecution. However, in Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014) the same provisions seem to have been replicated without any substantial difference.

The Preamble of the Interim Constitution of Nepal, among other, expresses full commitment to competitive multi-party democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of the press, independent judiciary and concepts of the rule of law. Similarly, under Part 3, Article 12 provides that every person shall have the right to live with dignity, and no law shall be made which provides for the death penalty and guarantees the fundamental rights with regards to personal liberty. Similarly, Article 13 provides for equality before law for all citizens and prohibits discrimination on any ground with regards to the application of general laws. Likewise Article 14 provides for the right against untouchability and racial discrimination, Article 19 provides for right to property, Article 20 provides for rights of women and Article 22 provides for the rights of the child. In addition, Article 24 provides for the right to a criminal justice system, which includes the right to a fair trial before competent court or judicial authority, and Article 26 provides for the right against torture. Through Articles 12 to 31 of the Constitution, provides a commitment to the citizens to guarantee different fundamental rights. Further, the right to come before this court as per Article 107, as part of the right to constitutional remedy has also been also recognised as a fundamental right as per Article 32.

Part 10 of the Constitution deals with the judiciary, wherein Article 100 (1) states that the powers relating to justice in Nepal shall be exercised by courts and other judicial bodies in accordance with the provisions of this Constitution, other laws and the recognized principles of justice. Further Article 102 (4) provides that the Supreme Court shall have the final authority to interpret this Constitution and the laws in force. Article 107 (1) provides the Supreme Court shall have extra-ordinary jurisdiction to declare that law to be void either ab initio or from the date of its decision if it appears that the law in question imposes an unreasonable restriction on the enjoyment of the fundamental rights or for any other reasons. Article 107 (2) provides for extraordinary writ jurisdiction to the Supreme Court with a view to imparting full justice and providing the appropriate remedy shall have the extraordinary power to issue necessary and appropriate orders for the enforcement of the fundamental rights or for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern.

Article 116 (1) provides that everyone shall abide by the orders and decisions made in the course of hearing a lawsuit by the Courts and Article 116 (2) provides for the constitutional provisions wherein any interpretation given to a law or any legal principle laid down by the Supreme Court in the course of hearing a lawsuit shall be binding on the Government of Nepal and all offices and courts.

The rule of law is the backbone of people's democracy. The stability, prosperity and development of people's democracy can only occur through maintaining the rule of law. People's democracy cannot be nurtured through not obeying the principle of judicial independence. People's democracy aims to establish the rule of law and not the rule of individuals. Therefore, democratic institutions cannot disregard the rule of law. The thought of being above the law is not democratic and people's democracy cannot prosper if state mechanisms are in competition with each other. Mutual benefit and co-operation are the qualities of people's democracy. Competition, that too fair, is only expected amongst political parties to gain the trust of the people.

This Court has passed repeated orders in the name of the State to bring those guilty of serious violations of human rights to the justice and to provide the victim with a sense of justice and to end impunity; however the practice and culture of the responsible State organs continually disregarding and violating such orders not only undermines the rule of law but has made a joke out of people's democracy as well.

A comprehensive study of the Constitution reveals that the combination of different organs and institutions forms a State and operates with rule of law. Each organ and institution has specific functions, none of which are directed against the others and only when each one does their function, then the duty of life can be fulfilled. It is to be expected that the legislative, executive and judicial organs should also stay within their own duties and functions.

Staying within the aforementioned constitutional structure, the different decisions, orders and directives of the Court are made as per the ultimate requirements of law and for the protection of the rights of the citizens and to ensure justice, therefore there is a constitutional requirement to respect those decisions, orders and directives as part of the duty of rule of law. If the other organs of the State, in disregard of the decisions, orders and directives of the Court, attempt to move in separate or opposite directions, then a rule of law cannot be maintained. While it is not expected that the judiciary will make serious decisions based on its vested interest or ego, then other organs are also not expected to willfully violate judicial decisions and orders. If state organs which are supposed to co-exist in the State machinery themselves move in the direction of conflict, disregard or violation then the rights of the citizens and justice will be the most affected, which ultimately can become dangerous to the State itself. Such unpleasant work cannot be acceptable to democratic institutions.

Solemnly accepting the ultimate interest of the nation and justice for the people, the organs of the State ,should show respect, friendliness and co-operation in their day to day activities.

Therefore, not considering bias or the element of win/loss, it is necessary to be guided by the norms and values of law and the constitution. No country in the world today can stay separate from the influence and effects of globalisation. Therefore the thought of attempting to implement universally accepted principles of law, norms and values of rights in a different way will not only isolate the nation from the international sphere, but also it will not help to maintain international reputation. The nation can establish itself in the global stage only through the implementation of the obligations as expressed in front of the international community. Simply making commitments while stepping back from implementation will only lead to a loss of trust.

A dynamic society faces conflict. Conflict does not only create negative effects, but can in certain cases also create positive effects. While that analysis can be left to the conflict experts, the continued existence of conflicts beyond a certain point does not have positive consequences on anyone. Therefore, it is important to have a balanced management of conflict that is also as per the law and acceptable to all parties. To create a situation where the huge group of conflict victims feel discarded and treated with injustice, is not a proper management of conflict and is an invitation to the recurrence of the conflict. One should not forget that the inability to clearly lay out the effects and results of conflict and to fail to deal with them as per justice, provides support to the circumstances which can again lead to a re-emergence of the conflict.

The character of the State is not to encourage impunity but to address the questions raised by the conflict and the results created by the conflict, so as to march towards the building of a just society. It is the obligation of the State per national as well as international law to bring serious violations of human rights within the boundaries of justice. In a nutshell, the provisions of the disputed Act do not seem to have easily accepted the jurisprudential basis of transitional justice.

Whether to issue orders or not as claimed in the writ petition, it is now necessary to think about the context of the question to be decided by the Court. The petition contends that the provision of Section 13 (2) which reads as "Notwithstanding whatsoever mentioned in the prevailing laws, the Commission in consultation with concerned court or body concerning the cases under consideration shall investigate the cases relating to the incidents occurred during the armed conflict " and Section 13 (4) which provides that " In case of a dispute concerning whether or not any incident took place during the armed conflict, the Commission shall decide on that matter " restrict citizens' right to justice, while also constricting and creating conflict with regards to judicial powers, making it adverse to the Interim Constitution of Nepal,2007, and thus asks for the impugned provisions to be repealed and to be declared null and void.

As per Article 100, Interim Constitution, the source of the Nepalese justice system is only the Constitution, law and the recognised principles of justice. This is also the basis of democratic values and principles. Everyone is well aware of the fact that the source of judicial power being based elsewhere has already been discarded. In other words, the residuary power regarding justice is constitutionally vested with the Nepalese judiciary. Other organs of the State cannot replace this and such thinking should not be encouraged.

Irrespective of the words used in the Act, it has to be remembered that the Commission formed under the Act cannot displace a judicial body, nor can it replace judicial functions or provide for an alternative to judicial functions. In fact, the Commission in itself merely provides assistance to the judicial process. The resultant cases of serious violation of human rights, filed on the basis of the truth and evidence unearthed by the Commission will ultimately be settled by the Courts and thus it is necessary to differentiate between a temporary body established to help the judicial process and the judiciary as a permanent organ of the State. Hence, it needs to be understood accordingly.

As far as the legality of Sections 13 (2) and 13 (4) is concerned, Section 13 (4) has given powers to the Commission to decide in case of any dispute concerning whether or not any incident took place in the context ofthe armed conflict or not. Section 13 (2), with regards to cases under consideration in the courts, provides for the Commission to investigate such cases in consultation with the courts.

Before the establishment of the Commission, both during the period of armed conflict and after such period, issues of judicial determination were presented before the courts and continue to be presented. It is the regular, inherent and constitutional duty of the courts to address these issues as per the existing constitutional and legal framework. Issues of judicial determination, except as per the Constitution, cannot be expelled or separated and doing so would be neither constitutional nor be as per the values and norms of democracy. In cases before the Court, instead of determining whether a case falls in the context of conflict, it is more important to the Courts to determine whether the claims raised are as per law or not. Every offence or act in some form or the other is a result of conflict. Even if it is related to or committed in the context of armed conflict, if it is against the constitution, human rights laws and humanitarian laws, then questions related to such incidents cannot be made disqualified from the ambit of the Court. Irrespective of the political relationships with the conflict, it is not possible to discard the legal aspects of case committed in the context of the conflict. To say that an act is related to political conflict and related to the period of conflict is not one and the same. There could have been numerous political and criminal incidents during the period of armed conflict. Purely political acts and acts of a criminal nature committed in the context of armed conflict cannot be kept together in the same classification.

It is the duty of the Court to determine the criminality of an act presented before it. If an act is proved to be criminal in nature, then by examining whether such act took place in the context of armed conflict or not, the Court by itself, cannot absolve related criminal responsibility. To determine whether or not an act is criminal is purely a judicial function, based on the examination of evidence. Such determination cannot be done by a quasi judicial body like a Commission. To allow for a subject that has to be determined purely in a judicial fashion to instead be determined by a quasi judicial body and for the Court to submit to it and surrender its jurisdiction with regards to such provisions is not consistent with constitutional law and the accepted principles of justice.

Examining the structure of Section 13 (2), it is seen that if the incident occurred in the context of armed conflict, the Commission will investigate even the cases that are under consideration in courts, in consultation with the concerned court. In this context, the usage of the phrasing 'in consultation with the court cannot be read to mean that the courts are compelled to surrender such cases. Consultation means consultation as per the discretion of the court and is not a compulsion. If the Commission asks the relevant Court for consultation to send a case under consideration, and the relevant court does not deem it to give such permission to the Commission regarding such case, then the Commission will not be in a position to carry out investigations. If any dispute arises in this regard, the cases under the jurisdiction of courts will continue to remain in the regular court.

The issue of the Commission being able to investigate even the cases under consideration in the courts, as per the provisions of Sections 13 (2) and 13 (4), lead to questions regarding the limits of such investigation. If the Commission has indeed been provided the powers to investigate such cases, then questions arise whether the Commission can make such decisions such as deleting it from the case records or freeing individuals from judicial responsibility, which might affect the outcome of the cases under consideration in the courts? However the aforementioned provisions do not mention anywhere that such cases are to be transferred to the Commission and that the jurisdiction of the Court shall be extinguished. Therefore the Commission does not replace the jurisdiction of the Courts. Consequently, the Commission, with regards to the cases under consideration in the Court, can only use it as a relevant source or reference during the course of investigation of other individuals or issues.

Consequently, if during the course of investigation of any other individual or issue, it is relevant for the Commission to study the case under consideration by the Courts, the Commission for such purpose shall make such demands to the Courts and if the Courts satisfied with their consultation may send documents of the cases, and that would allow the Commission to study the case, and it is natural to do so. However except for such situation, for the Commission to either receive or take by itself, cases under consideration, by extinguishing the jurisdiction of the court and to further decide on such cases cannot be contemplated at all.

The cases within the jurisdiction of the court cannot be so transferred and no other body except the Courts can decide such cases. Therefore, the interpretation of the provision of Section 13 (4) regarding the powers of the Commission to decide whether or not any incident took place in the context of armed conflict, cannot be for cases under consideration in the Courts but can instead be used for applications filed before the Commission with regards to its own jurisdiction. As the aforementioned sub sections (2) and (4) neither pose any problems nor can they be understood to be of such a nature to pose any problems for the continuation of issues under consideration before the Courts, based on aforementioned interpretation and analysis, it does not become necessary to repeal these provisions.

Now next question,

Similarly, the writ petition has also raised issues with regards to the reconciliation process as per Section 22 (1) of the Act, and the need to have a voluntary consent of the victim as a mandatory requirement. Section 22 (1) reads as " If a perpetrator or a victim files an application before the Commission for reconciliation, the Commission may cause to reconcile between the perpetrator and the victim." The mere subject of filing an application for reconciliation is not objectionable. However as social ties are based on coexistence and similar feelings, no reconciliation can take place in disregard of the victims. This requires the independent and informed consent of both parties. Reconciliation cannot be imposed on the victim. Reconciliation should not take place by hurting the self respect of the victims. In reality, the process of reconciliation becomes meaningful only in situations when it has been initiated or invited by the victim.

In addition to this, it is clear that reconciliation cannot, and should not be used as a medium to provide amnesty to perpetrators of serious violation of human rights. As per the provisions of Section 25 (1) of the Act, the Commission may recommend to take action against those involved in crimes concerning gross human rights violations. The provisions of Section 22 (6) of the Act providing that the Commission may not initiate reconciliation between victims and perpetrators who have not been recommended for amnesty, as per the provisions of Section 26 (2), is also an indicator in this direction. Section 26 (2) provides that the Commission shall not recommend for amnesty to the perpetrators of crimes of a serious nature. The understanding of 'crimes of a serious nature' should include, in addition to rape as mentioned in the provision, the serious violations of human rights as mentioned in Section 2 (j) of the Act as well, and the same has already been clarified in previous orders as well.

The petitioners have shown grave concern and interest with regards to the provisions regarding amnesty in Section 26 of the Act. In particular, the provisions of Section 26 (2) (1) stating that " Notwithstanding whatsoever mentioned in Sub Section (1) the Commission shall not recommend for amnesty to the perpetrators involved in rape and other crimes of serious nature in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty " seem to be objectionable. The direct meaning of such legal provisions is that if the Commission so desires, it could recommend for amnesty even the perpetrators of crimes of a serious nature. Crimes of a serious nature are by themselves crimes related to the grave violation of human rights. It is the duty as well as being constitutional and legal for the Commission to look for grounds to be able to bring the perpetrators of such serious crimes to justice and ensure punishment. Without charging the perpetrator and without determining the offence, and in a fashion reminiscent of a general amnesty, the Commission should neither be actively involved in the search for the basis and reasons to ensure such amnesty nor does it suit the Commission to do so.

Article 12 (1), Interim Constitution of Nepal, 2007 provides every person with the right to live with dignity. Similarly, Article 13 provides for the right to equality and Article 24 (9) guarantees every person the right to a fair trial by a competent court or judicial body. Article 32 provides for constitutional remedies with regards to enforcement of rights provided by the Constitution.

Nepal is a party to a number of international treaties and has signed in various international instruments. It includes the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, International Covenant on Economic, Social and Cultural Rights, 1966, International Covenant on Civil and Political Rights, 1966, Convention on the Elimination of All Forms of Discrimination against Women, 1979, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Convention on the Rights of the Child, 1989, UN Charter, Universal Declaration of Human Rights as well as many other conventions.

As Section 9 (1) of the Nepal Treaty Act, 1991 provides that provisions of such international conventions shall be enforceable as good as Nepalese laws, such international laws provide that it is the State's duty to investigate crimes, find out the truth, bring the perpetrators within the judicial ambit and ensure reparation compensation ? to the victims. Article 2 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, of which Nepal is a party, provides that each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. In addition, Article 13 provides for right to get justice by complaining to competent authorities, while Article 14 provides for compensation to torture victims and their dependants. Article 8 of the Universal Declaration of Human Rights provides that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 2 (1) of the International Covenant on Civil and Political Rights provides for each State party to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . Looking at the decision of foreign human rights courts in this regard, the Inter American Court of Human Rights in [Velasquez Rodriguez v Honduras(29 July 1988)] stated that it was the legal duty of the State to investigate the violations of human rights including enforced disappearances and provide for punishment in such cases. The same court in the case of Barrios Altos v Peru on 14 March, 2001, while holding two Peruvian laws regarding amnesty as being in contravention of the American Convention on Human Rights seemed to state that any amnesty scheme which allowed for the abolishment of criminal prosecution and the establishment of impunity was unacceptable in the context of the grave violation of human rights.

On the basis of the aforementioned analysis, in other crimes of a serious nature as well, it is unfortunate in itself as to why there existsa need to search for adequate reasons and basis to provide for amnesty. Once a serious crime has taken place, the only way out is that of a judicial process. We feel that to search for a principle which allows for no case to be filed even when a serious crime has taken place, and to say that if the reasons are adequate then amnesty can be provided, is a serious challenge in the context of law as well as humanity.

Therefore, with regards to the sentence used in Section 26 (2) (1) "... in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty" even while removing the sentence, the provision still being coherent and comprehensible, the provision "... in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty" being contrary to the Constitution is liable to be repealed.

Similarly, the provision of Section 26 (5) stating " If an application is submitted for amnesty pursuant to Sub-section (3), considering the consent, dissent of the victim and gravity of the incident, the Commission shall have to decide on recommendation for amnesty" is also controversial. The usage of dissent right after consent of the victim, can provide for dual meaning. However there can never be any amnesty without the consent of the victim, nor can there be any amnesty in crimes of a serious nature, and the same has repeatedly been addressed in various decisions of this Court, and the Commission should use the same as its guiding principle. The Commission cannot disregard the decisions of this Court.

The petitioners contend that the provisions of Section 29 of the Act make the recommendations of the Commission subordinate to the Government of Nepal and also affect the constitutional right of the Attorney General to prosecute. Section 29 (1) of the Act provides that the Attorney General or a Public Prosecutor designated by him shall, after necessary investigation, decide on the matter whether a case can be prosecuted or not against any person, if the Ministry writes on the basis of the recommendation of the Commission to prosecute any person found guilty on allegation of serious human rights violations. As per Article 135 (2) of the Interim Constitution, the Attorney general shall have the right to make the final decision as to whether to institute any case on behalf of the Government of Nepal in any court or judicial authority.

As per Article 135, Interim Constitution of Nepal, 2063, the powers regarding prosecution is of a specific and autonomous nature. The reason for such direct powers under the Constitution is that the Office of the Attorney General is a professional and judicial institution, which does not initiate prosecutions based on any specific political aims and neither based on any political reasons, does it not initiate prosecution when it ought to be initiated. Further to ensure that serious criminal charges which contain issues of criminal offence, should be correct and impartial as per the specific legal and judicial requirement, such an institution having been created and given complete responsibility regarding prosecutions, the powers of the Attorney general regarding prosecution cannot be constricted.

Thus there is no logical reasoning behind why the Commission should not or cannot directly recommend prosecution to the Attorney General who has the constitutional power to initiate prosecutions on behalf of the government.With regards to the recommendation of initiating prosecution against individuals found guilty by the Commission, the winding method of sending it to the Attorney General only creates unnecessary complexities and doubts. The indirect meaning of this is to help the perpetrator escape prosecution. As there has already been adequate interpretation and analysis in this regard in previous orders, and being contrary to the clear provisions of the Constitution and being mentioned more than is necessary the sentence "....if the Ministry writes...." of the impugned Section is liable to be repealed.

Therefore on the basis of the aforementioned analysis and reasons, with regards to the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014), the wording of Section 26 (2)" ... in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty" and the wording of Section 29 (1) "...if the Ministry writes" being contrary to Articles 12, 13 , 24 and 135 included of the Interim Constitution of Nepal, is declared to be repealed from the date of this order.

Looking at the language of the law in question, and the intent and spirit of the written submissions of the respondents, it is clear that the relevance of the interpretations, analysis and orders, directives given by this Court in previous cases is not over, Instead in light of the formation and start of the work of the Commissions, it assumes even greater significance of previous orders and directive of this court. Consequently to investigate the incidents of intentional acts of a criminal nature during the period of conflict, to find the guilty and recommend for punishment and except for cases of serious violation of human rights, in cases of a simple nature with the complete consent of the victim and with the aim of reconciliation the Commissions on Truth and Reconciliation Commission and the Commission on Investigation of Disappeared Persons have been established. This bench expects that these acts of these quasi-judicial Commissions, will ultimately result in a direct assistance to the judicial process.

The provisions of the Act are by themselves neither sufficient nor clear, as outlined by the analysis in the preceding paragraphs. Further, both the Commissions may face complexities or confusion in the course of their work. In such a circumstance, these Commissions established by the law of the land, have to be aware of the constitution, law, international human rights law and humanitarian law and the established principles of justice. In addition, the orders issued by this Court are a part of constitutional law and share the same space as the established principles of justice. Therefore, such orders which are a part of the constitutional tradition, form part of the guiding principle for the working of the Commissions. The effect or results of the acts of the Commissions cannot remain outside the purview of judicial review.

Any individual guilty of serious violation of human rights cannot escape the responsibility of his actions; what this means is that on one pretext or the other, no one else should also attempt to help such individuals escape.Anyone making any attempt to help the guilty elude such responsibility or becoming an accessory to such an attempt should be ready to face the consequences created by such actions. This Bench believes that the Commissions established by law will not commit such actions.

Further, this order issued, according to Article 107 (2) of the Interim Constitution 2063 (2007), to the concerning Commissions and inter alia the Government of Nepal to perform as per the orders, directives and interpretations of this writ petition as well as the prior cases of petitioners Rajendra Dhakal, Liladhar Bhandari and Madhab Basnet and others, in the issue regarding the provisions of the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014) that are either vague or excluded or difficult to implement due to their being contrary with the constitution, international human rights law and humanitarian law. Duly a copy of this order to be forwarded to the Office of the Attorney General to this effect for the notice of the Respondents. Do terminate the regular case proceeding record and handover the case file to the Archive Section as per law.

Justice

We concur with the above.

Justice Justice

Done on this Thursday, the 26th of February of the Year 2015.
Bench Officer: Under Secretaries Shiba Prasad Khanal and Bishnu Prasad Gautam
Computer Typing: Bikes Guragain

An unofficial translation of the decision, a joint work of the UN and ICJ

Notes:

1. Translator's Note: The Ministry in the Act refers to the Ministry of Peace and Reconstruction. [Back]

26Feb15 - NPL

Nepal Supreme Court Review of the Investigation of Disappeared Persons, Truth and Reconciliation Commission Act.

-Suman Adhikari et. al vs. the Office of Prime Minister and Council of Ministers-

Justice

[By way of: International Committee of the Red Cross.]

Judicial Decision
Bookshop \| Donate Derechos \| Equipo Nizkor